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        <title><emph rend="bold">THE FLUSH TIMES OF ALABAMA 
AND MISSISSIPPI. </emph>A Series of Sketches:
Electronic Edition</title>
        <author>Baldwin, Joseph Glover,  1815-1864</author>
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        <pubPlace>University of North Carolina at Chapel Hill,</pubPlace>
        <date>1998.</date>
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            <item>Law -- Alabama -- Anecdotes.</item>
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            <item>Baldwin, Joseph G. (Joseph Glover), 1815-1864 -- Anecdotes.</item>
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    <front>
      <div1 type="frontispiece">
        <p>
<figure id="frontis" entity="baldwinfp"><p>Simion 
Suggs, JR. <lb/> [Frontispiece Image]</p></figure></p>
      </div1>
      <div1 type="title page">
        <p>
<figure id="title" entity="baldwintp"><p>[Title Page Image]</p></figure></p>
      </div1>
      <titlePage>
        <docTitle>
          <titlePart type="main">THE
<lb/>
FLUSH TIMES
<lb/>
OF
<lb/>
ALABAMA AND MISSISSIPPI.</titlePart>
          <titlePart type="subtitle">A Series of Sketches.</titlePart>
        </docTitle>
        <byline>BY</byline>
        <docAuthor>JOSEPH G. BALDWIN.</docAuthor>
        <docEdition>NINTH THOUSAND.</docEdition>
        <docImprint><pubPlace>NEW-YORK:</pubPlace>
<publisher>D. APPLETON &amp; CO., 346 &amp; 348 BROADWAY;<lb/>
LONDON: 16 LITTLE BRITAIN.</publisher>
<docDate>M.DCCC.LIV.</docDate></docImprint>
        <titlePart type="verso">ENTERED, according to act
of Congress, in the year 1853, by<lb/>
D. APPLETON &amp; COMPANY,<lb/>
In the Clerk's Office of the District Court of
the United States, for the<lb/>
Southern District of New-York.</titlePart>
      </titlePage>
      <div1 type="dedication">
        <lg type="dedication">
          <l>TO</l>
          <l>“THE OLD FOLKS AT HOME”</l>
          <lb/>
          <l>MY FRIENDS</l>
          <lb/>
          <l>IN THE VALLEY OF THE SHENANDOAH,</l>
          <lb/>
          <l>This Volume</l>
          <lb/>
          <l>IS RESPECTFULLY DEDICATED.</l>
        </lg>
      </div1>
      <pb n="v"/>
      <div1 type="preface">
        <head>PREFACE.</head>
        <p>SOME of these papers were published in the SOUTHERN
LITERARY MESSENGER, and having met with a favorable
reception from the Public, and a portion of the Press, the
author has yielded to the solicitations of his own vanity,
and other flattering friends, and collected them in a volume
with other pieces of the same general character. The
scheme of the articles he believes to be original in design
and execution,—at least, no other work with which he is
acquainted, has been published in the United States
designed to illustrate the periods, the characters, and the
phases of society, some notion of which is attempted to be
given in this volume. The author, under the tremor of a
<pb id="baldvi" n="vi"/>
first publication, felt strongly inclined to offer a sneaking
apology for the many errors and imperfections of his work;
such as the fact that the articles were written in haste,
under the pressure of professional engagements and
amidst constant interruptions; and that he has no time or
opportunity for correction and revision. But he anticipated
the too ready answer to such a plea: “If you had no time to
write well, why did you write at all? Who constrained you?
If you were not in dress to see company, why come
unbidden into the presence of the public? Why not, at
least, wait until you were fit to be presented?” He
confesses that he sees no way to answer these tough
questions, unless the apology of Falstaff for rushing into
the presence of <hi rend="italics">King</hi> Hal,
“before he had time to <hi rend="italics">have</hi>
made new liveries”—“stained with travel and sweating
with desire to see him,”—be a good one—as,
“inferring
the zeal he had to see him”—“the earnestness of
affection”—“the devotion:” but in
poor Jack's case, <hi rend="italics">“not
to deliberate, not to remember, not to have patience to
shift him,”</hi> was not a very effectual excuse for his coming
out of sorts; and we are afraid, that that other Sovereign,
the
<pb id="baldvii" n="vii"/>
Public, is not more facile of approach, or more credulous
of excuses; for, unfortunately, the ardor of an author's
greeting is something beyond the heat of the Public's
reception of him, or, as Pat expresses it, the reciprocity of
feeling is all on one side.</p>
        <p>Without apology, therefore, he gives these leaves to
the winds,—with that feeling of comfort and composure
which comes of the knowledge that, let the venture go as it
may, he loses little who puts but little at hazard.</p>
        <p>The author begs to return to the accomplished Editor of
the Messenger, JNO. R. THOMPSON, ESQ., his
acknowledgments, for revising and correcting this work as
it passed through the press.</p>
        <closer>
          <date>LIVINGSTON,
<hi rend="italics">Ala.</hi>, 1853.</date>
        </closer>
      </div1>
      <pb n="ix"/>
      <div1 type="contents">
        <head>CONTENTS</head>
        <list type="simple">
          <item>OVID BOLUS, ESQ
<lb/>
Attorney at Law, and Solicitor in Chancery.
. . . . . .
<ref targOrder="U" target="bald1">1</ref></item>
          <item>MY FIRST APPEARANCE AT THE BAR
<lb/>	Higginbotham <hi rend="italics">vs.</hi> Swink,
Slander . . . . .   <ref targOrder="U" target="bald20">20</ref></item>
          <item>THE BENCH AND THE BAR<lb/>	Introduction  -
Jolly Times—Chaos of Jurisprudence—The Era of
	  Quashing—Jim T., a Character  -
          How to get rid of Counts in a
	  Declaration—A Nonsuit  -
          The Commonwealth <hi rend="italics">vs.</hi> Foreman  -
	  Yankee Schoolmaster in a Fix  -
          The Argument and Verdict, &amp;c.
 . . . . . <ref targOrder="U" target="bald47">47</ref>
</item>
          <item>HOW THE TIMES SERVED THE VIRGINIANS<lb/>
Virginians in a NEW Country—The Rise, Decline, and Fall of the
	Rag Empire
 . . . . . <ref targOrder="U" target="bald72">72</ref>
</item>
          <item>ASSAULT AND BATTERY<lb/>
<hi rend="italics">Burrell </hi> &amp;c., or Burwell
Shines—His Testimony in Full—Verdict of the
	Jury. . . . . . <ref targOrder="U" target="bald106">106</ref></item>
          <item>SIMON SUGGS, JR., ESQ.; A LEGAL BIOGRAPHY<lb/>
Correspondence. . . . . . <ref targOrder="U" target="bald114">114</ref></item>
          <item>SQUIRE A. AND THE FRITTERS . . . . .
<ref targOrder="U" target="bald142">142</ref></item>
          <item>JONATHAN AND THE CONSTABLE . . . . .
<ref targOrder="U" target="bald147">147</ref></item>
          <item>SHARP FINANCIERING . . . . .
<ref targOrder="U" target="bald151">151</ref></item>
          <item>CAVE BURTON, ESQ., OF KENTUCKY <lb/>
His Traits and Characteristics—The Earthquake Story  -
A Breach of
Promise—A Fining Judge—Scene in a Court-House—Miss Jule
Pritcher—Catastrophe, &amp;c., &amp;c. . . . . .
<ref targOrder="U" target="bald153">153</ref></item>
          <pb id="baldx" n="x"/>
          <item>JUSTIFICATION AFTER VERDICT . . . . .
<ref targOrder="U" target="bald177">177</ref></item>
          <item>AN AFFAIR OF HONOR . . . . .
 <ref targOrder="U" target="bald192">192</ref></item>
          <item>HON. S.S. PRENTISS<lb/>A Sketch of his
Character, and Review of his Public Career. . . . . .
<ref targOrder="U" target="bald197">197</ref></item>
          <item>THE BAR OF THE SOUTH-WEST<lb/>Jurisprudence
in a New Country—The Young Attorney and the
Celebrated Lawyer—Litigation attending
Frontier Life—The
Poetry of Swindling, &amp;c., &amp;c. . . . . .
<ref targOrder="U" target="bald223">223</ref></item>
          <item>HON. FRANCIS STROTHER <lb/>‘Portrait
of a Gentleman’—The Genius of Labor—Rare Union of the
<hi rend="italics">Suaviter</hi> and the
<hi rend="italics">Fortiter</hi>—The Hon. Francis's Munificence  -
His Services to the State, &amp;c., &amp;c.. . . . .
<ref targOrder="U" target="bald250">250</ref></item>
          <item>MR. TEE AND MR. GEE . . . . .
<ref targOrder="U" target="bald264"> 264</ref></item>
          <item>SCAN. MAG . . . . .
<ref targOrder="U" target="bald271">271</ref></item>
          <item>AN EQUITABLE SET-OFF . . . . .
<ref targOrder="U" target="bald273">273</ref></item>
          <item>A COOL REJOINDER . . . . .
<ref targOrder="U" target="bald275">275</ref></item>
          <item>A HUNG COURT
<lb/>
Smith <hi rend="italics">vs.</hi> Johnson . . . . .
<ref targOrder="U" target="bald276">276</ref></item>
          <item>SAMUEL HELE, ESQ<lb/>A Yankee
Schoolmistress and an Alabama Lawyer. . . . . .
<ref targOrder="U" target="bald284">284</ref></item>
          <item>JOHN STOUT, ESQ., AND MARK SULLIVAN . . . . .
<ref targOrder="U" target="bald304">304</ref></item>
          <item>MR. ONSLOW . . . . . <ref targOrder="U" target="bald312">312</ref></item>
          <item>JO. HEYFRON . . . . . <ref targOrder="U" target="bald316">316</ref></item>
          <item>OLD UNCLE JOHN OLIVE . . . . . <ref targOrder="U" target="bald318">318</ref></item>
          <item>EXAMINING A CANDIDATE FOR LICENSE . . . . .
<ref targOrder="U" target="bald324">324</ref></item>
        </list>
      </div1>
    </front>
    <pb id="bald1" n="1"/>
    <body>
      <div1 type="chapter">
        <head>OVID BOLUS, ESQ.,</head>
        <head>ATTORNEY AT LAW AND SOLICITOR IN CHANCERY.</head>
        <head>A FRAGMENT</head>
        <p>* * * * * * *</p>
        <p>AND what history of that halcyon period, ranging from the year
of Grace, 1835, to 1837; that golden era, when shinplasters were
the sole currency; when bank-bills were “as thick as Autumn
leaves in Vallambrosa,” and credit was a
franchise,—what history
of those times would be complete, that left out the name of Ovid
Bolus? As well write the biography of Prince Hal, and forbear all
mention of Falstaff. In law phrase, the thing
would be a “deed
without a name,” and void; a most
unpardonable <hi rend="italics"><foreign lang="la">casus
omissus.</foreign></hi>
</p>
        <p>I cannot trace, for reasons the sequel suggests, the early
history, much less the birth-place, pedigree, and juvenile
associations of this worthy. Whence he or his forbears got his
name or how, I don't know: but for the fact that it is to be inferred
he got it in infancy, I should have thought he
<pb id="bald2" n="2"/>
borrowed it: he borrowed every thing else he ever had, such things
as he got under the credit system only excepted: in deference,
however, to the axiom, that there is <hi rend="italics">some</hi> exception to <hi rend="italics">all</hi> general
rules, I am willing to believe that he got this much honestly, by
<hi rend="italics"><foreign lang="la">bona fide</foreign></hi> gift or inheritance, and without false presence.</p>
        <p>I have had a hard time of it in endeavoring to assign to Bolus
his leading vice: I have given up the task in despair; but I have
essayed to designate that one which gave him, in the end, most
celebrity. I am aware that it is invidious to make comparisons, and
to give pre-eminence to one over other rival qualities and gifts,
where all have high claims to distinction: but, then, the stern
justice of criticism, in this case, requires a discrimination, which,
to be intelligible and definite, must be relative and comparative. I,
therefore, take the responsibility of saying, after due reflection,
that in my opinion, Bolus's reputation stood higher for lying than
for any thing else: and in thus assigning pre-eminence to this
poetic property, I do it without any desire to derogate from other
brilliant characteristics belonging to the same general category,
which have drawn the wondering notice of the world.</p>
        <p>Some men are liars from interest; not because they have no
regard for truth, but because they have less regard for it then for
gain: some are liars from vanity, because they would rather be
well thought of by others, than have reason for thinking well of
themselves: some are liars from a sort of necessity, which
overbears, by the weight of temptations, the
<pb id="bald3" n="3"/>
sense of virtue: some are enticed away by the allurements of
pleasure, or seduced by evil example and education. Bolus was
none of these: he belonged to a higher department of the fine arts,
and to a higher class of professors of this sort of <foreign lang="fr">Belles-Lettres.</foreign>Bolus was a natural liar, just as some horses are natural pacers,
and some dogs natural setters. What he did in that walk, was from
the irresistible promptings of instinct, and a disinterested love
of art. His genius and his performances were free from the vulgar
alloy of interest or temptation. Accordingly, he did not labor a
lie: he lied with a relish: he lied with a coming appetite,
growing with what it fed on: he lied from the delight of invention
and the charm of fictitious narrative. It is true he applied his art to
the practical purposes of life; but in so far did he glory the more
in it; just as an ingenious machinist rejoices that his invention,
while it has honored science, has also supplied a common want.</p>
        <p>Bolus's genius for lying was encyclopediacal: it was what
German criticism calls many-sided. It embraced all subjects
without distinction or partiality. It was equally good upon all,
“from grave to gay, from lively to severe.”</p>
        <p>Bolus's lying came from his greatness of soul and his
comprehensiveness of mind. The truth was too small for him. Fact
was too dry and common-place for the fervor of his genius.
Besides, great as was his memory—for he even remembered the
outlines of his chief lies—his invention was still larger. He had a
great contempt for history and historians. He thought them tame
and timid cobblers; mere
<pb id="bald4" n="4"/>
tinkers on other people's wares,—simple parrots and magpies of
other men's sayings or doings; borrowers of and acknowledged
debtors for others' chattels, got without skill; they had no separate
estate in their ideas: they were bailees of goods, which they did
not pretend to hold by adverse title; buriers of talents in napkins
making no usury; barren and unprofitable non-producers in the
intellectual vineyard—<hi rend="italics"><foreign lang="la">nati consumere fruges.</foreign></hi></p>
        <p>He adopted a fact occasionally to start with, but, like a Sheffield
razor and the crude ore, the workmanship, polish and value were all
his own: a Thibet shawl could as well be credited to the insensate
goat that grew the wool, as the author of a fact Bolus honored
with his artistical skill, could claim to be the inventor of the story.</p>
        <p>His experiments upon credulity, like charity, began at home.
He had long torn down the partition wall between his imagination
and his memory. He had long ceased to distinguish between the
impressions made upon his mind by what came <hi rend="italics">from</hi> it, and
what came <hi rend="italics">to</hi> it: all ideas were facts to him.</p>
        <p>Bolus's life was not a common man's life. His world was not
the hard, work-day world the groundlings live in: he moved in a
sphere of poetry: he lived amidst the ideal and romantic. Not that
he was not practical enough, when he chose to be: by no means.
He bought goods and chattels, lands and tenements, like other
men; but he got them under a state of poetic illusion, and paid for
them in an imaginary way. Even the titles he gave were not of the
<hi rend="italics">earthy</hi>
<pb id="bald5" n="5"/>
sort—they were sometimes <hi rend="italics">clouded.</hi>He gave notes, too,—how
well I know it!—like other men; he paid them like himself.</p>
        <p>How well he asserted the Spiritual over the Material! How he
delighted to turn an abstract idea into concrete cash—to make a
few blots of ink, representing a little thought, turn out a labor-saving
machine, and bring into his pocket money which many days
of hard exhausting labor would not procure! What pious joy it
gave him to see the days of the good Samaritan return, and the hard
hand of avarice relax its grasp on land and negroes, pork and clothes,
beneath the soft speeches and kind promises of future rewards—
blending in the act the three cardinal virtues, Faith, Hope, and
Charity; while, in the result, the chief of these three was <hi rend="italics">Charity!</hi></p>
        <p>There was something sublime in the idea—this elevating the
spirit of man to its true and primeval dominion over things of
sense and grosser matter.</p>
        <p>It is true, that in these practical romances, Bolus was charged
with a defective taste in repeating himself. The justice of the charge
must be, at least, partially acknowledged: this I know from a
client to whom Ovid sold a tract of land after having sold it twice
before: I cannot say, though, that his forgetting to mention this
circumstance made any difference, for Bolus originally had no
title.</p>
        <p>There was nothing narrow, sectarian, or sectional<sic corr="no period">.</sic> in Bolus's
lying. It was on the contrary broad and catholic. It had no respect
to times or places. It was as wide, illimitable,
<pb id="bald6" n="6"/>
as elastic and variable as the air he spent in giving it
expression. It was a generous, gentlemanly, whole-souled faculty.
It was often employed on occasions of this sort, but no more; and
no more zealously on these than on others of no profit to himself.
He was an Egotist, but a magnificent one; he was not a liar because
an egotist, but an egotist because a liar. He usually made himself
the hero of the romantic exploits and adventures he narrated; but
this was not so much to exalt himself, as because it was more
convenient to his art. He had nothing malignant or invidious in his
nature. If he exalted himself, it was seldom or never to the
disparagement of others, unless, indeed, those others were merely
imaginary persons, or too far off to be hurt. He would as soon lie
for you as for himself. It was all the same, so there was something
doing in his line of business, except in those cases in which
his necessities required to be fed at your expense.</p>
        <p>He did not confine himself to mere lingual lying: one tongue
was not enough for all the business he had on hand. He acted lies
as well. Indeed, sometimes his very silence was a lie. He made
nonentity fib for him, and performed wondrous feats by a
“masterly inactivity.”</p>
        <p>The <hi rend="italics">personnel</hi> of this distinguished Votary of the Muse, was
happily fitted to his art. He was strikingly handsome. There was
something in his air and bearing almost princely, certainly quite
distinguished. His manners were winning, his address frank,
cordial and flowing. He was built after the model and structure of
Bolingbroke in his youth, <hi rend="italics">Americanized</hi>
<pb id="bald7" n="7"/>
and <hi rend="italics">Hoosierized</hi> a little by a “raising in,” and an
adaptation to, the Backwoods. He was fluent but choice of
diction, a little sonorous in the structure of his sentences to give
effect to a voice like an organ. His countenance was open and
engaging, usually sedate of expression, but capable of any
modifications at the shortest notice. Add to this his intelligence,
shrewdness, tact, humor, and that he was a ready debater and
elegant declaimer, and had the gift of bringing out, to the fullest
extent, his resources, and you may see that Ovid, in a new
country, was a man apt to make no mean impression. He drew the
loose population around him, as the magnet draws iron filings. He
was the man for the “boys,”—then a numerous and influential
class. His generous profusion and free handed manner impressed
them as the bounty of Cæsar the loafing commonalty of Rome:
Bolus was no niggard. He never higgled or chaffered about small
things. He was as free with his own money—if he ever had any of
his own—as with yours. If he never paid borrowed money, he
never asked payment of others. If you wished him to lend you
any, he would give you a handful without counting it: if you
handed him any, you were losing time in counting it, for you never
saw any thing of it again: Shallow's funded debt on Falstaff were
as safe an investment: this would have been an equal commerce,
but, unfortunately for Bolus's friends, the proportion between his
disbursements and receipts was something scant. Such a
spendthrift never made a track even in the flush times of 1836. It
took as much to support him as a first class steamboat. His bills at
the groceries
<pb id="bald8" n="8"/>
were as long as John Q. Adams' Abolition petition, or, if pasted
together, would have matched the great Chartist memorial. He
would as soon treat a regiment or charter the grocery for the day,
as any other way; and after the crowd had heartily drank—some
of them “laying their souls in soak,”—if he did not have the
money convenient—as when did he?—he would fumble in his
pocket, mutter something about nothing less than a $100 bill, and
direct the score, with a lordly familiarity, to be charged to his
account.</p>
        <p>Ovid had early possessed the faculty of ubiquity. He had been
born in more places than Homer. In an hour's discourse, <hi rend="italics">he</hi>
would, with more than the speed of Ariel, travel at every point of
the compass, from Portland to San Antonio, some famous
adventure always occurring just as he “rounded to,” or while
stationary, though he did not remain longer than to see it. He was
present at every important debate in the Senate at Washington,
and had heard every popular speaker on the hustings, at the bar
and in the pulpit, in the United States. He had been concerned in
many important causes with Grymes and against Mazereau in
New Orleans, and had borne no small share in the fierce forensic
battles, which, with singular luck, <hi rend="italics">he</hi> and Grymes always won in
the courts of the Crescent City. And such frolics as they had
when they laid aside their heavy armor, after the heat and burden
of the day! Such gambling! A negro <hi rend="italics">ante</hi> and twenty on the call,
was moderate playing. What lots of “Ethiopian captives” and
other plunder <hi rend="italics">he raked down</hi> vexed Arithmetic to count and
credulity to believe; and, had
<pb id="bald9" n="9"/>
it not been for Bolus's generosity in giving “the boys” a chance
to win back <hi rend="italics">by doubling off on the high hand,</hi> there is no knowing
what charges of owners would not have occurred in the Rapides
or on the German Coast.</p>
        <p>The Florida war and the Texas Revolution, had each furnished
a brilliant theatre for Ovid's chivalrous emprise. Jack Hays and he
were great chums. Jack and he had many a hearty laugh over the
odd trick of Ovid, in lassoing a Camanche Chief, while galloping a
stolen horse bare-backed, up the San Saba hills. But he had the
rig on Jack again, when he made him charge on a brood of about
twenty Camanches, who had got into a mot of timber in the
prairies, and were shooting their arrows from the covert, Ovid,
with a six-barrelled rifle, taking them on the wing as Jack rode in
and flushed them!</p>
        <p>It was an affecting story and feelingly told, that of his and Jim
Bowie's rescuing an American girl from the Apaches, and returning
her to her parents in St. Louis; and it would have been still more
tender, had it not been for the unfortunate necessity Bolus was
under of shooting a brace of gay lieutenants on the border, one
frosty morning, before breakfast, back of the fort, for taking
unbecoming liberties with the fair <sic corr="damsel">damosel</sic>, the spoil of his bow
and spear.</p>
        <p>But the girls Ovid courted, and the miraculous adventures he
had met with in love beggared by the comparison, all the fortune
of war had done for him. Old Nugent's daughter, Sallie, was his
narrowest escape; Sallie was accomplished to the romantic
extent of two ocean steamers, and
<pb id="bald10" n="10"/>
four blocks of buildings in Boston, separated only from immediate
“perception and pernancy,” by the contingency of old
Nugent's recovering from a confirmed dropsy, for which he had
been twice ineffectually tapped. The day was set—the presents
made—superb of course—the guests invited: the old Sea
Captain insisted on Bolus's setting his negroes free, and taking
five thousand dollars apiece for the loss. Bolus's love for the
“peculiar institution” wouldn't stand it. Rather than submit to
such degradation, Ovid broke off the match, and left Sallie broken-hearted;
a disease from which she did not recover until about six
months afterwards, when she ran off with the mate of her father's
ship, the Sea Serpent, in the Rio trade.</p>
        <p>Gossip and personal anecdote were the especial subjects of
Ovid's elocution. He was intimate with all the notabilities of the
political circles. He was a privileged visitor of the political greenroom.
He was admitted back into the laboratory where the
political thunder was manufactured, and into the office where the
magnetic wires were worked. He knew the origin of every party
question and movement, and had a finger in every pie the party
cooks of Tammany baked for the body politic.</p>
        <p>One thing in Ovid I can never forgive. This was his coming it
over poor Ben. I don't object to it on the score of the swindle.
That was to have been expected. But swindling Ben was degrading
the dignity of the art. True, it illustrated the universality of his
science, but it lowered it to a beggarly process of mean deception.
There was no skill
<pb id="bald11" n="11"/>
in it. It was little better than crude larceny. A child could have
done it; it had as well been done to a child. It was like catching a
cow with a lariat, or setting a steel trap for a pet pig. True, Bolus
had nearly practised out of custom. He had worn his art
threadbare. Men, who could afford to be cheated, had all been
worked up or been scared away. Besides, Frost couldn't be put
off. He talked of money in a most ominous connection with blood.
The thing could be settled by a bill of exchange. Ben's name was
unfortunately good—the amount some $1,600. Ben <hi rend="italics">had</hi> a fine
tract of land in S-r. He has not got it now. Bolus only gave Ben
one wrench—that was enough. Ben never breathed easy
afterwards. All the V's and X's of ten years' hard practice, went in
that penful of ink. Fie! Bolus, Monroe Edwards wouldn't have
done that. He would sooner have sunk down to the level of some
honest calling for a living, than have put his profession to so mean
a shift. I can conceive of but one extenuation; Bolus was on
the lift for Texas, and the desire was natural to qualify himself
for citizenship.</p>
        <p>The genius of Bolus, strong in its unassisted strength, yet
gleamed out more brilliantly under the genial influence of “the
rosy.” With boon companions and “reaming suats,” it was
worth while to hear him of a winter evening. He could “gild the
palpable and the familiar, with golden exhalations of the dawn.”
The most common-place objects became dignified. There was a
history to the commonest articles about him: that book was given
him by Mr. Van Buren
<pb id="bald12" n="12"/>
—the walking stick was a present from Gen. Jackson <sic corr="undecipherable word"/>thrice-watered
Monongahela, just drawn from the grocery hard by, was the last of a
distillation of 1825, smuggled in from Ireland, and presented to him
by a friend in New Orleans, on easy terms with the collector; the
cigars, not too fragrant, were of a box sent him by a schoolmate from
Cuba, in 1834 —<hi rend="italics">before</hi> he visited the Island. And talking of Cuba—he
had met with an adventure there, the impression of which never
could be effaced from his mind. He had gone, at the instance of Don
Carlos y Cubanos, (an intimate classmate in a Kentucky Catholic
College,) whose life he had saved from a mob in Louisville, at the
imminent risk of his own. The Don had a sister of blooming sixteen,
the least of whose charms was two or three coffee plantations, some
hundreds of slaves, and a suitable garnish of doubloons, accumulated
during her minority, in the hands of her uncle and guardian, the
Captain General. All went well with the young lovers—for such, of
course, they were—until Bolus, with his usual frank indiscretion, in
a conversation with the Priest, avowed himself a Protestant. Then
came trouble. Every effort was made to convert him; but Bolus's
faith resisted the eloquent tongue of the Priest, and the more
eloquent eyes of Donna Isabella. The brother pleaded the old
friendship—urged a seeming and formal conformity—the Captain
General argued the case like a politician—the Señorita like a warm
and devoted woman. All would not do. The Captain General
forbade his longer sojourn on the Island. Bolus took leave of the fair
Señorita: the parting interview held in the
<pb id="bald13" n="13"/>
orange bower, was affecting: Donna Isabella, with dishevelled hair,
threw herself at his feet; the tears streamed from her eyes: in
liquid tones, broken by grief, she implored him to
relent,—reminded him of her love, of her trust in him, and of the
consequences—now not much longer to be concealed—of that
love and trust; (“though I protest,” Bolus would say, “I don't
know what she meant exactly by <hi rend="italics">that.</hi>”) “Gentlemen,” Bolus
continued, “I confess to the weakness—I wavered—but then my
eyes happened to fall on the breast-pin with a lock of my
mother's hair—I recovered my courage: I shook her gently from
me. I felt my last hold on earth was loosened—my last hope of
peace destroyed. Since that hour, my life has been a burden. Yes,
gentlemen, you see before you a broken man—a martyr to his
Religion. But, away with these melancholy thoughts: boys, pass
around the jorum.” And wiping his eyes, he drowned the wasting
sorrow in a long draught of the poteen; and, being much refreshed,
was able to carry the burden on a little further,—<hi rend="italics"><foreign lang="la">videlicet</foreign>,</hi> to the
next lie.</p>
        <p>It must not be supposed that Bolus was destitute of the tame
virtue of prudence—or that this was confined to the avoidance of
the improvident habit of squandering his money in paying old
debts. He took reasonably good care of his person. He avoided all
unnecessary exposures, chiefly from a patriotic desire, probably,
of continuing his good offices to his country. His recklessness
was, for the most part, lingual. To hear him talk, one might
suppose he held his carcass merely for a target to try guns and
<pb id="bald14" n="14"/>
knives upon; or that the business of his life was to draw men up to
ten paces or less, for sheer improvement in marksmanship. Such
exploits as he had gone through with, dwarfed the heroes of
romance to very pigmy and sneaking proportions. Pistol at the
Bridge when he bluffed at honest Fluellen, might have envied the
swash-buckler airs, Ovid would sometimes put on. But I never
could exactly identify the place he had laid out for his
burying-ground. Indeed, I had occasion to know that he declined to
understand several not very ambiguous hints, upon which he
might, with as good a grace as Othello, have spoken, not to
mention one or two pressing invitations which his modesty led him
to refuse. I do not know that the base sense of fear had any thing
to do with these declinations: possibly he might have thought he
had done his share of fighting, and did not wish to monopolize: or
his principles forbade it—I mean those which opposed his paying
a debt: knowing he could not cheat that inexorable creditor, Death,
of his claim, he did the next thing to it; which was to delay and
shirk payment as long as possible.</p>
        <p>It remains to add a word of criticism on this great <hi rend="italics">Ly</hi>ric artist.</p>
        <p>In lying, Bolus was not only a successful, but he was a very
able practitioner. Like every other eminent artist, he brought all
his faculties to bear upon his art. Though quick of perception and
prompt of invention, he did not trust himself to the inspirations
of his genius for <hi rend="italics">improvising</hi> a lie, when he could well premeditate
one. He deliberately
<pb id="bald15" n="15"/>
built up the substantial masonry, relying upon the occasion
and its accessories, chiefly for embellishment and collateral
supports: as Burke excogitated the more solid parts of his great
speeches, and left unprepared only the illustrations and fancy-work.</p>
        <p>Bolus's manner was, like every truly great man's, his own. It
was excellent. He did not come blushing up to a lie, as some
otherwise very passable liars do, as if he were making a mean
compromise between his guilty passion or morbid vanity, and a
struggling conscience. Bolus had long since settled all disputes with
<hi rend="italics">his</hi> conscience. He and it were on very good terms—at least, if
there was no affection between the couple, there was no fuss in the
family; or, if there were any scenes or angry passages, they were
reserved for strict privacy and never got out. My own opinion is,
that he was as destitute of the article as an ostrich. Thus he came
to his work bravely, cheerfully and composedly. The delights of
composition, invention and narration, did not fluster his style or
agitate his delivery. He knew how, in the tumult of passion, to
assume the “temperance to give it smoothness.” A lie never ran
away with him, as it is apt to do with young performers: he could
always manage and guide it; and to have seen him fairly mounted,
would have given you some idea of the polished elegance of
D'Orsay, and the superb <hi rend="italics"><foreign lang="fr">manage</foreign></hi> of Murat. There is a tone and
manner of narration different from those used in delivering ideas
just conceived; just as there is a difference between the sound of
the voice in reading and in speaking. Bolus knew
<pb id="bald16" n="16"/>
this, and practised on it. When he was narrating, he put the
facts in order, and seemed to speak them out of his memory; but
not formally, or as if by rote. He would stop himself to correct a
date; recollect he was wrong—he was <hi rend="italics">that</hi> year at the White
Sulphur or Saratoga, &amp;c.: having got the date right, the names of
persons present would be incorrect, &amp;c.: and these he corrected in
turn. A stranger hearing him, would have feared the marring of a
good story by too fastidious a conscientiousness in the narrator.</p>
        <p>His zeal in pursuit of a lie under difficulties, was remarkable.
The society around him—if such it could be called—was hardly
fitted, without some previous preparation, for an immediate
introduction to Almack's or the classic precincts of Gore House.
The manners of the natives were rather plain than ornate, and
candor rather than polish, predominated in their conversation.
Bolus had need of some forbearance to withstand the
interruptions and cross-examinations, with which his
revelations were sometimes received. But he possessed this in a
remarkable degree. I recollect, on one occasion, when he was giving
an account of a providential escape he was signally favored with,
(when boarded by a pirate off the Isle of Pines, and he pleaded
masonry, and gave a sign he had got out of the Disclosures of
Morgan,) Tom Johnson interrupted him to say that he had
heard <hi rend="italics">that</hi> before, (which was more than Bolus had ever done.) B.
immediately rejoined, that he had, he believed, given him, Tom, a
<hi rend="italics">running</hi> sketch of the incident. “Rather,” said Tom, “I think, a
<hi rend="italics">lying</hi> sketch.” Bolus scarcely
<pb id="bald17" n="17"/>
smiled, as he replied, that Tom was a wag, and couldn't help
turning the most serious things into jests; and went on with his
usual brilliancy, to finish the narrative. Bolus did not overcrowd
his canvas. His figures were never confused, and the subordinates
and accessories did not withdraw attention from the main and
substantive lie. He never squandered his lies profusely: thinking,
with the poet, that “bounteous, not prodigal, is kind Nature's
hand,” he kept the golden mean between penuriousness and
prodigality; never stingy of his lies, he was not wasteful of them,
but was rather forehanded than pushed, or embarrassed, having,
usually, fictitious stock to be freshly put on 'change, when he
wished to “make a raise.” In most of his fables, he inculcated but a
single leading idea; but contrived to make the several facts of the
narrative fall in very gracefully with the principal scheme.</p>
        <p>The rock on which many promising young liars, who might
otherwise have risen to merited distinction, have split, is vanity:
this marplot vice betrays itself in the exultation manifested on the
occasion of a decided hit, an exultation too inordinate for mere
recital, and which betrays authorship; and to betray authorship, in
the present barbaric, moral and intellectual condition of the world
is fatal. True, there seems to be some inconsistency here. Dickens
and Bulwer can do as much lying, for money too, as they choose,
and no one blame them, any more than they would blame a lawyer
regularly <hi rend="italics">fee'd</hi> to do it; but let any man, gifted with the same
genius, try his hand at it, not deliberately and in writing,
<pb id="bald18" n="18"/>
but merely orally, and ugly names are given him, and he is
proscribed! Bolus heroically suppressed exultation over the
victories his lies achieved.</p>
        <p>Alas! for the beautiful things of Earth, its flowers, its
Sunsets—its lovely girls—its lies—brief and fleeting are their
date. Lying is a very delicate accomplishment. It must be tenderly
cared for, and jealousy guarded. It must not be overworked. Bolus
forgot this salutary caution. The people found out his art.
However dull the commons are as to other matters, they get sharp
enough after a while, to whatever concerns their bread and butter.
Bolus not having confined his art to political matters, sounded, at
last, the depths, and explored the limits of popular credulity. The
denizens of this degenerate age, had not the disinterestedness of
Prince Hal, who “cared not how many fed at his cost;” they got
tired, at last, of promises to pay. The credit system, common
before as pump-water, adhering, like the elective franchise to every
voter, began to take the worldly wisdom of Falstaff's mercer, and
ask security; and security liked something more substantial than
plausible promises. In this forlorn condition of the country,
returning to its savage state, and abandoning the refinements of a
ripe Anglo-Saxon civilization for the sordid safety of Mexican or
Chinese modes of traffic; deserting the sweet simplicity of its
ancient trustfulness and the poetic illusions of Augustus
Tomlinson, for the vulgar saws of poor Richard—Bolus, with a
sigh like that breathed out by his great prototype after his
apostrophe to London, gathered up, one
<pb id="bald19" n="19"/>
bright moonlight night, his articles of value, shook the dust from
his feet, and departed from a land unworthy of his longer sojourn.
With that delicate consideration for the feelings of his friends,
which, like the politeness of Charles II., never forsook him, he
spared them the pain of a parting interview. He left no greetings of
kindness; no messages of love: nor did he ask assurances of their
lively remembrance. It was quite unnecessary. In every house he
had left an autograph, in every ledger a souvenir. They will never
forget him. Their connection with him will be ever regarded as</p>
        <lg type="verse">
          <l>- “The <hi rend="italics">greenest</hi> spot</l>
          <l>In memory's waste.”</l>
        </lg>
        <p>Poor Ben, whom he had honored with the last marks of his
confidence, can scarcely speak of him to this day, without tears in
his eyes. Far away towards the setting sun he hied him, until, at
last, with a hermit's disgust at the degradation of the world, like
Ignatius turned monk, he pitched his tabernacle amidst the smiling
prairies that sleep in vernal beauty, in the shadow of the San
Saba mountains. There let his mighty genius rest. It has earned
repose. We leave Themistocles to his voluntary exile.</p>
      </div1>
      <pb id="bald20" n="20"/>
      <div1 type="chapter">
        <head>MY FIRST APPEARANCE AT THE BAR.</head>
        <head>HIGGINBOTHAM<lb/>
<hi rend="italics">vs.</hi><lb/>
SWINK, <hi rend="italics">Slander.</hi></head>
        <p>DID you ever, reader, get a merciless barrister of the old school
after you when you were on your first legs—in the callow
tenderness of your virgin epidermis? I hope not. I wish I could
say the same for myself; but I cannot: and with the faint hope of
inspiring some small pity in the breasts of the seniors, I now, one
of them myself, give in my lively experience of what befell me at
my first appearance on the forensic boards.</p>
        <p>I must premise by observing that, some twenty years ago—
more or less—shortly after I obtained license to practise law
in the town of H- , State of Alabama, an unfortunate client called at
my office to retain my services in a celebrated suit for slander.
The case stands on record,<hi rend="italics">Stephen O. Higginbotham</hi> vs. <hi rend="italics">Caleb
Swink.</hi> The aforesaid Caleb, “greatly envying the happy state
and condition of said Stephen,” who, “until 
the grievances,” &amp;c.,
“never had been suspected of the crime of
 hog-stealing,” &amp;c.,
said,
<pb id="bald21" n="21"/>
“in the hearing and presence of one Samuel Eads and other good
and worthy citizens,” of and concerning the plaintiff, 
“you” (the
said Stephen meaning) “are a noted hog thief, and stole more hogs
than all the wagons in M- could haul off in a week on a turnpike
road.” The way I came to be employed was this: Higginbotham
had retained Frank Glendye, a great brick in “damage cases,” to
bring the suit, and G. had prepared the papers, and got the case on
the pleadings, ready for trial. But, while the case was getting
ready, Frank was suddenly taken dangerously drunk, a disease to
which his constitution was subject. The case had been continued
for several terms, and had been set for a particular day of the term
then going on, to be disposed of finally and positively when called.
It was hoped that the lawyer would recover <hi rend="italics">his health</hi> in time to
prosecute the case; but he had continued the drunken fit with the
suit. The morning of the trial came on; and, on going to see his
counsel, the client found him utterly prostrate; not a hope
remained of his being able to get to the court-house. He was in
collapse; a perfect cholera case. Passing down the street, almost in
despair, as my good or evil genius would have it, Higginbotham
met Sam Hicks, a tailor, whom I had honored with my patronage
(as his books showed) for many years; and, as one good turn
deserves another—a suit for a suit—he, on hearing the
predicament H. was in, boldly suggested my name to supply the
place of the fallen Glendye; adding certain assurances and
encomiums which did infinite credit to his friendship and his
imagination.</p>
        <pb id="bald22" n="22"/>
        <p>I gathered from my calumniated client, as well as I could, the
facts of the case, and got a young friend to look me up the law of
slander, to be ready when it should be put through, if it ever <hi rend="italics">did</hi> get
to the jury.</p>
        <p>The defendant was represented by old Cæsar Kasm, a famous
man in those days; and well might he be. This venerable limb of
the law had long practised at the M- bar, and been the terror of
this generation. He was an old-time lawyer, the race of which is
now fortunately extinct, or else the survivors “lag superfluous on
the stage.” He was about sixty-five years old at the time I am
writing of; was of stout build, and something less than six feet in
height. He dressed in the old-fashioned fair-top boots and shorts;
ruffled shirt, buff vest, and hair, a grizzly gray, roached up flat
and stiff in front, and hanging down in a queue behind, tied with
an eel-skin and pomatumed. He was close shaven and powdered
every morning; and, except a few scattering grains of snuff which
fell occasionally between his nose and an old fashioned gold
snuff-box, a speck of dirt was never seen on or about his
carefully preserved person. The taking out of his deliciously
perfumed handkerchief, scattered incense around like the shaking
of a lilac bush in full flower. His face was round, and a sickly
florid, interspersed with purple spots, overspread it, as if the
natural dye of the old <sic corr="cognac">cogniac</sic> were maintaining an unequal contest
with the decay of the vital energies. His bearing was decidedly
soldierly, as it had a right to be, he having served as a captain some
eight years before he took to the bar, as being the more pugnacious
<pb id="bald23" n="23"/>
profession. His features, especially the mouth, turned down
at the corners like a bull-dog's or a crescent, and a
nose perked up with unutterable scorn and self-conceit, and eyes
of a sensual, bluish gray, that seemed to be all light and no heat,
were never pleasing to the opposing side. In his way, old Kasm
was a very polite man. Whenever he chose, which was when it was
his interest, to be polite, and when his blood was cool and he was
not trying a law case, he would have made Chesterfield and Beau
Brummel ashamed of themselves. He knew all the gymnastics of
manners, and all forms and ceremonies of deportment; but there
was no more soul or kindness in the manual he went through, than
in an iceberg. His politeness, however seemingly deferential, had a
frost-bitten air, as if it had lain out over night and got the
<hi rend="italics">rheumatics</hi> before it came in; and really, one felt less at ease under
his frozen smiles, than under any body else's frowns.</p>
        <p>He was the proudest man I ever saw: he would have made the
Warwicks and the Nevilles, not to say the Plantagenets or Mr.
Dombey, feel very limber and meek if introduced into their
company; and selfish to that extent, that, if by giving up the
nutmeg on his noon glass of toddy, he could have christianized the
Burmese empire, millennium never would come for him.</p>
        <p>How far back he traced his lineage, I do not remember, but he
had the best blood of both worlds in his veins; sired high up on
the paternal side by some Prince or Duke, and dammed on the
mother's by one or two Pocahontases. Of
<pb id="bald24" n="24"/>
course, from this, he was a Virginian, and the only one I ever
knew that did not quote those Eleusinian mysteries, the
Resolutions of 1798-99. He did not. He was a Federalist, and
denounced Jefferson as a low-flung demagogue, and Madison as
his tool. He bragged largely on Virginia, though—he was not
eccentric on this point—but it was the Virginia of Washington, the
Lees, Henry, &amp;c., of which he boasted. The old dame may take it
as a compliment that he bragged of her at all.</p>
        <p>The old Captain had a few negroes, which, with a declining
practice, furnished him a support. His credit, in consequence of
his not having paid any thing in the shape of a debt for something
less than a quarter of a century, was rather limited. The property
was covered up by a deed or other instrument, drawn up by Kasm
himself, with such infernal artifice and diabolical skill, that all the
lawyers in the county were not able to decide, by a legal
construction of its various clauses, who the negroes belonged to,
or whether they belonged to any body at all.</p>
        <p>He was an inveterate opponent of new laws, new books, new
men. He would have revolutionized the government if he could,
should a law have been passed, curing defects in Indictments.</p>
        <p>Yet he was a friend of strong government and strong laws: he
might approve of a law making it death for a man to blow his
nose in the street, but would be for rebelling if it allowed the
indictment to dispense with stating in which hand he held it.</p>
        <pb id="bald25" n="25"/>
        <p>This eminent barrister was brought up at a time when zeal for
a client was one of the chief virtues of a lawyer—the client
standing in the place of truth, justice and decency, and
monopolizing the respect due to all. He, therefore, went into all
causes with equal zeal and confidence, and took all points that
could be raised with the same earnestness, and belabored them
with the same force. He personated the client just as a great actor
identifies himself with the character he represents on the stage.</p>
        <p>The faculty he chiefly employed was a talent for vituperation
which would have gained him distinction on any theatre, from the
village partisan press, down to the House of Representatives
itself. He had cultivated vituperation as a science, which was like
putting guano on the Mississippi bottoms, the natural fertility of
his mind for satirical productions was so great. He was as much
fitted by temper as by talent for this sort of rhetoric, especially
when kept from his dinner or toddy by the trial of a case—then
an alligator whose digestion had been disturbed by the horns of a
billy goat taken for lunch, was no mean type of old Sar Kasm (as
the wags of the bar called him, by nickname, formed by joining the
last syllable of his christian, or rather, heathen name, to his
patronymic). After a case began to grow interesting, the old fellow
would get fully stirred up. He grew as quarrelsome as a little bull
terrier. He snapped at witnesses, kept up a constant snarl at the
counsel, and growled, at intervals, at the judge, whom, whoever he
was, he considered as <hi rend="italics">ex officio</hi>, his natural enemy, and so regarded
<pb id="bald26" n="26"/>
every thing got from him as so much wrung from an unwilling
witness.</p>
        <p>But his great <hi rend="italics"><foreign lang="fr">forte</foreign></hi> was in cross-examining a witness. His
countenance was the very expression of sneering incredulity. Such
a look of cold, unsympathizing, scornful penetration as gleamed
from his eyes of ice and face of brass, is not often seen on the
human face divine. Scarcely any eye could meet unshrinkingly that
basilisk gaze: it needed no translation: the language was plain:
“Now you are swearing to a lie, and I'll catch you in it in a minute;”
and then the look of surprise which greeted each new fact stated,
as if to say, “I expected some lying, but really this exceeds all my
expectations.” The mock politeness with which he would address a
witness, was any thing but encouraging; and the officious kindness
with which he volunteered to remind him of a real or fictitious
embarrassment, by asking him to take his time and not to suffer
himself to be confused, as far as possible from being a relief; while
the air of triumph that lit up his face the while, was too provoking
for a saint to endure.</p>
        <p>Many a witness broke down under his examination, that would
have stood the fire of a masked battery unmoved, and many
another, voluble and animated enough in the opening narrative,
“slunk his pitch mightily,” when old Kasm put him through on
the cross-examination.</p>
        <p>His last look at them as they left the box, was an advertisement
to come back, “and they would hear something to their
advantage;” and if they came, they heard it, if humility is worth
buying at such a price.</p>
        <pb id="bald27" n="27"/>
        <p>How it was, that in such a fighting country, old Kasm
continued at this dangerous business, can only be understood, by
those who know the entire readiness—nay, eagerness of the old
gentleman, to do reason to all serious inquirers;—and one or two
results which happened some years before the time I am writing
of, to say nothing of some traditions in the army, convinced the
public, that his practice was as sharp at the small sword as at the
cut and thrust of professional digladiation.</p>
        <p>Indeed, it was such an evident satisfaction to the old fellow to
meet these emergencies, which to him were merely lively episodes
breaking the monotony of the profession, that his enemies, out of
spite, resolutely refused to gratify him, or answer the sneering
challenge stereotyped on his countenance. “Now if you can do
any better, suppose you help yourself?” So, by common consent,
he was elected free libeller of the bar. But it was very dangerous to
repeat after him.</p>
        <p>When he argued a case, you would suppose he had bursted his
gall-bag—such, not vials but demijohns, of vituperation as he
poured out with a fluency only interrupted by a pause to gather,
like a tree-frog, the venom sweltering under his tongue into a
concentrated essence. He could look more sarcasm than any body
else could express; and in his scornful gaze, virtue herself looked
like something sneaking and contemptible. He could not arouse
the nobler passions or emotions; but he could throw a wet blanket
over them. It took Frank Glendye and half a pint of good
<pb id="bald28" n="28"/>
French brandy, to warm the court-house after old Kasm was done
speaking: but <hi rend="italics">they</hi> could do it.</p>
        <p>My client was a respectable butcher: his opponent a well-to-do
farmer. On getting to the court-house, I found the court in
session. The clerk was just reading the minutes. My <hi rend="italics'">case</hi>—I can
well speak in the singular—was set the first on the docket for that
morning. I looked around and saw old Kasm, who somehow had
found out I was in the case, with his green bag and half a library
of old books on the bar before him. The old fellow gave me a look
of malicious pleasure—like that of a hungry tiger from his lair,
cast upon an unsuspecting calf browsing near him. I had tried to
put on a bold face. I felt that it would be very unprofessional to
let on to my client that I was at all scared, though my heart was
running down like a jack-screw under a heavy wagon. My
conscience—I had not practised it away then—was not quite
easy. I couldn't help feeling that it was hardly honest to be leading
my client, like Falstaff his men, where he was sure to be
peppered. But then it was my only chance; my bread depended
on it; and I reflected that the same thing has to happen in every
lawyer's practice. I tried to arrange my ideas in form and
excogitate a speech: they flitted through my brain in odds and
ends. I could neither think nor quit thinking. I would lose myself
in the first twenty words of the opening sentence and stop at a
particle;—the trail run clean out. I would start it again with no
better luck: then I thought a moment of the disgrace of a dead
break-down; and then I
<pb id="bald29" n="29"/>
would commence again with “gentlemen of the jury,” &amp;c., and
go on as before.</p>
        <p>At length the judge signed the minutes and took up the docket:
“Special case—Higginbotham <hi rend="italics">vs.</hi> Swink: Slander Mr. Glendye
for plff.; Mr. Kasm for deft. Is Mr. G. in court? Call him,
Sheriff.” The sheriff called three times. He might as well have
called the dead. No answer of course came. Mr. Kasm rose and
told the court that he was sorry his brother was too much
(stroking his chin and looking down and pausing) indisposed, or
otherwise engaged, to attend the case; but he must insist on its
being disposed of, &amp;c.: the court said it would be. I then spoke up
(though my voice seemed to me <hi rend="italics">very</hi> low down and very hard to
get up), that I had just been spoken to in the cause: I believed we
were ready, if the cause must be then tried; but I should much
prefer it to be laid over, if the court would consent, until the next
day, or even that evening. Kasm protested vehemently against
this; reminded the court of its peremptory order; referred to the
former proceedings, and was going on to discuss the whole merits
of the case, when he was interrupted by the judge, who, turning
himself to me, remarked that he should be happy to oblige me, but
that he was precluded by what had happened: he hoped, however,
that the counsel on the other side would extend the desired
indulgence; to which Kasm immediately rejoined, that this was a
case in which he neither asked favors nor meant to give them. So
the case had to go on. Several members of the bar had their hats in
hand, ready to leave the room when the case
<pb id="bald30" n="30"/>
was called up; but seeing that I was in it alone, suffered their
curiosity to get the better of other engagements, and staid to see it
out; a circumstance which did not diminish my trepidation in the
least.</p>
        <p>I had the witnesses called up, posted my client behind me in
the bar, and put the case to the jury. The defendant had pleaded
justification and not guilty. I got along pretty well, I thought, on
the proofs. The cross-examination of old Kasm didn't seem to me
to hurt any thing—though he quibbled, misconstrued, and bullied
mightily; objected to all my questions as leading, and all the
witnesses' answers as irrelevant: but the judge, who was a very
clever sort of a man, and who didn't like Kasm much, helped me
along and over the bad places, occasionally taking the examination
himself when old Kasm had got the statements of the witness in a
fog.</p>
        <p>I had a strong case; the plaintiff showed a good character:
that the lodge of Masons had refused to admit him to fellowship
until he could clear up these charges: that the Methodist Church,
of which he was a class-leader, had required of him to have these
charges judicially settled: that he had offered to satisfy the
defendant that they were false, and proposed to refer it to
disinterested men, and to be satisfied—if they decided for
him—to receive a written retraction, in which the defendant
should only declare he was mistaken; that the defendant refused
this proffer and reiterated the charges with increased bitterness
and aggravated insult; that the defendant had suffered in
reputation and credit; that the defendant declared he meant to
run him off and
<pb id="bald31" n="31"/>
buy his land at his (defendant's) own price; and that defendant
was rich, and often repeated his slanders at public meetings, and
once at the church door, and finally <hi rend="italics">now justified.</hi></p>
        <p>The defendant's testimony was weak: it did not controvert
the proof as to the speaking of the words, or the matters of
aggravation. Many witnesses were examined as to the character of
the plaintiff; but those against us only referred to what they had
heard since the slanders, except one who was unfriendly. Some
witnesses spoke of butchering hogs at night, and hearing them
squeal at a late hour at the plaintiff's slaughter house, and of the
dead hogs they had seen with various marks, and something of
hogs having been stolen in the neighborhood.</p>
        <p>This was about all the proof.</p>
        <p>The plaintiff laid his damages at $10,000.</p>
        <p>I rose to address the jury. By this time a good deal of the
excitement had worn off. The tremor left, only gave me that sort
of feeling which is rather favorable than otherwise to a public
speaker.</p>
        <p>I might have made a pretty good <hi rend="italics">out</hi> of it, if I had thrown
myself upon the merits of my case, acknowledged modestly my
own inexperience, plainly stated the evidence and the law, and let
the case go—reserving myself in the conclusion <hi rend="italics">for a splurge</hi>, if I
chose to make one. But the evil genius that presides over the first
bandings of all lawyerlings, would have it otherwise. The citizens
of the town and those of the country, then in the village, had
gathered
<pb id="bald32" n="32"/>
in great numbers into the courthouse to hear the speeches and I
could not miss such an opportunity for display.</p>
        <p>Looking over the jury I found them a plain, matter-of-fact
looking set of fellows; but I did not note, or probably know a fact
or two about them, which I found out afterwards.</p>
        <p>I started, as I thought, in pretty good style. As I went on,
however, my fancy began to get the better of my judgment.
Argument and common sense grew tame. Poetry and declamation,
and, at last, pathos and fiery invective, took their place. I grew as
<hi rend="italics">quotatious</hi> as Richard Swiveller. Shakspeare suffered. I quoted,
among other things of less value and aptness, “He who steals my
purse steals trash,” &amp;c. I spoke of the <sic corr="woeful">woful</sic> sufferings of my poor
client, almost heart-broken beneath the weight of the terrible
persecutions of his enemy: and, growing bolder, I turned on old
Kasm, and congratulated the jury that the genius of slander had
found an appropriate defender in the genius of chicane and
malignity. I complimented the jury on their patience—on their
intelligence—on their estimate of the value of character; spoke of
the public expectation—of that feeling outside of the box which
would welcome with thundering plaudits the righteous verdict the
jury would render; and wound up by declaring that I had never
known a case of slander so aggravated in the course of my practice
at that bar; and felicitated myself that its grossness and barbarity
justified my client in relying upon even the youth and inexperience
of an unpractised advocate, whose poverty of
<pb id="bald33" n="33"/>
resources was unaided by opportunities of previous
preparation. Much more I said that happily has now escaped
me.</p>
        <p>When I concluded Sam Hicks and one or two other friends
gave a faint sign of applause—but not enough to make any
impression.</p>
        <p>I observed that old Kasm held his head down when I was
speaking. I entertained the hope that I had cowed him! His usual
port was that of cynical composure, or bold and brazen defiance. It
was a special kindness if he only smiled in covert scorn: that was
his most amiable expression in a trial.</p>
        <p>But when he raised up his head I saw the very devil was to
pay. His face was of a burning red. He seemed almost to choke
with rage. His eyes were blood-shot and flamed out fire and fury.
His queue stuck out behind, and shook itself stiffly like a buffalo
bull's tail when he is about making a fatal plunge. I had struck him
between wind and water. There was an audacity in a stripling like
me bearding him, which infuriated him. He meant to massacre me
—and wanted to be a long time doing it. It was to be a regular <hi rend="italics"><foreign lang="la">auto
da fé</foreign></hi>. I was to be the representative of the young bar, and to
expiate his malice against all. The court adjourned for dinner. It
met again after an hour's recess.</p>
        <p>By this time the public interest, and especially that of the bar,
grew very great. There was a rush to the privileged seats, and the
sheriff had to command order,—the shuffling of feet and the
pressure of the crowd forward was so great.</p>
        <pb id="bald34" n="34"/>
        <p>I took my seat within the bar, looked around with an
affectation of indifference so belying the perturbation within, that
the same power of acting on the stage would have made my
fortune on <hi rend="italics">that</hi> theatre.</p>
        <p>Kasm rose—took a glass of water: his hand trembled a
little—I could see that; took a pinch of snuff, and led off in a voice
slow and measured, but slightly—very slightly—tremulous. By a
strong effort he had recovered his composure. The bar was
surprised at his calmness. They all knew it was affected; but they
wondered that he <hi rend="italics">could</hi> affect it. Nobody was deceived by it. We
felt assured “it was the torrent's smoothness ere it dash below.” I
thought he would come down on me in a tempest, and flattered
myself it would soon be over. But malice is cunning. He had no
idea of letting me off so easily.</p>
        <p>He commenced by saying that he had been some years in the
practice. He would not say he was an old man: that would be in
bad taste, perhaps. The young gentleman who had just closed his
remarkable speech, harangue, poetic effusion, or rigmarole, or
whatever it might be called, if, indeed, any name could be safely
given to this motley mixture of incongruous slang—the young
gentleman evidently did not think he was an old man; for he could
hardly have been guilty of such rank indecency as to have treated
age with such disrespect—he would not say with such insufferable
impertinence: and yet, “I am,” he continued, 
“of age enough to
recollect, if I had charged my memory with so inconsiderable an
event, the day of <hi rend="italics">his</hi> birth, and then I was in full
<pb id="bald35" n="35"/>
practice in this courthouse. I confess, though, gentlemen, I <hi rend="italics">am old</hi>
enough to remember the period when a youth's first appearance at
the bar was not signalized by impertinence towards his seniors;
and when public opinion did not think flatulent bombast and florid
trash, picked out of fifth-rate romances and namby-pamby
rhymes, redeemed by the upstart sauciness of a raw popinjay,
towards the experienced members of the profession he disgraced.
And yet, to some extent, this ranting youth may be right: I am not
old in that sense which disables me from defending myself <hi rend="italics">here</hi> by
words, or <hi rend="italics">elsewhere</hi>, if need be, by blows: and that, this young
gentleman shall right well know before I have done with him. You
will bear in mind, gentlemen, that what I say is in self-defence
—that I did not begin this quarrel—that it was forced on
me; and that I am bound by no restraints of courtesy, or of
respect, or of kindness. Let him charge to the account of his own
rashness and rudeness, whatever he receives in return therefor.</p>
        <p>“Let me retort on this youth that he is a worthy advocate of
his butcher client. He fights with the dirty weapons of his
barbarous trade, and brings into his speech the reeking odor of his
client's slaughter-house.</p>
        <p>“Perhaps something of this congeniality commended him to
the notice of his worthy client, and to this, his first retainer: and
no wonder, for when we heard his vehement roaring, we might
have supposed his client had brought his most unruly bull-calf
into court to defend him, had not the matter of the roaring soon
convinced us the animal was
<pb id="bald36" n="36"/>
more remarkable for the length of his ears, than even the power of
his lungs. Perhaps the young gentleman has taken his retainer,
and contracted for butchering my client on the same terms as his
client contracts in his line—that is, on the shares. But I think,
gentlemen, he will find the contract a more dirty than profitable
job. Or, perhaps, it might not be uncharitable to suggest that his
client, who seems to be pretty well up to the business <hi rend="italics">of saving
other people's bacon</hi>, may have desired, as far as possible, to save
his own; and, therefore turning from members of the bar who
would have charged him for their services according to their value,
took this occasion of getting off some of his stale wares; for has
not Shakspeare said—(the gentleman will allow me to quote
Shakspeare, too, while yet his reputation survives <hi rend="italics">his</hi> barbarous
mouthing of the poet's words)—he knew an attorney 
‘who would
defend a cause far a starved hen, or leg of mutton fly-blown.’ I
trust, however, whatever was the contract, that the gentleman will
make his equally worthy client stand up to it; for I should like,
that on one occasion it might be said the excellent butcher <hi rend="italics">was
made to pay for his swine.</hi></p>
        <p>“I find it difficult, gentlemen, to reply to any part of the
young man's effort, except his argument, which is the smallest
part in compass, and, next to his pathos, the most amusing. His
figures of speech are some of them quite good, and have been
so considered by the best judges for the last thousand
years. I must confess, that as to these, I find no other fault than
that they were badly applied and ridiculously
<pb id="bald37" n="37"/>
pronounced; and this further fault, that they have become
so common-place by constant use, that, unless some new
vamping or felicity of application be given them, they tire nearly
as much as his original matter—<hi rend="italics">videlicet</hi>, that matter which being
more ridiculous than we ever heard before, carries internal
evidence of its being his own. Indeed, it was never hard to tell
when the gentleman recurred to his own ideas. He is like a cat-bird
—the only intolerable discord she makes being her own
notes—though she gets on well enough as long as she copies and
cobbles the songs of other warblers.</p>
        <p>“But, gentlemen, if this young orator's argument was
amusing, what shall I say of his pathos? What farce ever equalled
the fun of it? The play of ‘The Liar’ probably approaches
nearest to it, not only in the humor, but in the veracious character
of the incidents from which the humor comes. Such a face—so
woe-begone, so whimpering, as if the short period since he was
flogged at school (probably in reference to those eggs falsely
charged to the hound puppy) had neither obliterated the
remembrance of his juvenile affliction, nor the looks he bore when
he endured it.</p>
        <p>“There was something exquisite in his picture of the woes,
the wasting grief of his disconsolate client, the butcher
Higginbotham, mourning—as Rachel mourned for her
Children—for his character <hi rend="italics">because it was not</hi>. Gentlemen, look at
him! Why he weighs twelve stone <hi rend="italics">now!</hi> He has three inches of
fat on his ribs this minute! He would make as many
links of sausage as any hog that ever squealed at
<pb id="bald38" n="38"/>
midnight in his slaughter pen, and has lard enough in him to cook
it all. Look at his face! why, his chops remind a hungry man of
jowls and greens. If this is a shadow, in the name of propriety,
why didn't he show himself, when in flesh, at the last Fair, beside
the Kentucky ox; that were a more honest way of making a living
than stealing hogs. But Hig is pining in grief! I wonder the poetic
youth—his learned <sic corr="counsel">connsel</sic>—did not quote Shakspeare again. ‘He
never told his’—woe—‘but let concealment, like the worm i' the
bud, prey on his damask cheek.’ He looked like Patience on a
monument smiling at grief—or beef I should rather say. But,
gentlemen, probably I am wrong; it may be that this tender-hearted,
sensitive butcher, was lean before, and like Falstaff,
throws the blame of his fat on sorrow and sighing, which ‘has
puffed him up like a bladder.’ (Here Higginbotham left in disgust.)</p>
        <p>“There, gentlemen, he goes, ‘larding the lean earth as he walks
along.’ Well has Doctor Johnson said, ‘who kills fat oxen should
himself be fat.’ Poor Hig! stuffed like one of his own
blood-puddings, with a dropsical grief which nothing short of ten
thousand dollars of Swink's money can cure. Well, as grief puffs
him up, I don't wonder that nothing but depleting another man
can cure him.</p>
        <p>“And now, gentlemen, I come to the blood and thunder part
of this young gentleman's harangue: empty and vapid; words and
nothing else. If any part of his rigmarole was windier than any
other part, this was it. He turned himself into a small cascade,
making a great deal of noise to
<pb id="bald39" n="39"/>
make a great deal of froth; tumbling; roaring; foaming; the
shallower it ran all the noisier it seemed. He fretted and knitted his
brows; he beat the air and he vociferated, always emphasizing the
meaningless words most loudly; he puffed, swelled out and
blowed off, until he seemed like a new bellows, all brass and
wind. How he mouthed it—as those villainous stage players
ranting out fustian in a barn theatre, [mimicking]—
‘Who steals my
purse, steals trash.’ (I don't deny it.) 
‘'Tis something,’ (query?)
‘nothing,’ (exactly.) 
‘ 'Tis mine; 'twas his, and has been slave to
thousands—but he who filches from me my good name, robs me
of that which not enricheth him,’ (not in the least,) 
‘but makes me
poor indeed;’ (just so, but whether any poorer than before he
parted with the encumbrance, is another matter.)</p>
        <p>But the young gentleman refers to his youth. He ought not to
reproach us of maturer age in that indirect way: no one would
have suspected it of him, or him of it, if he had not told it: indeed,
from hearing him speak, we were prepared to give him credit for
almost <hi rend="italics">any length of ears</hi>. But does not the youth remember
that Grotius was only seventeen when he was in full practice, and
that he was Attorney General at twenty-two; and what is Grotius
to this greater light? Not the burning of my smoke house to the
conflagration of Moscow!</p>
        <p>“And yet, young Grotius tells us in the next breath, that he
never knew such a slander in the course of his practice?
Wonderful, indeed! seeing that his practice has all been
<pb id="bald40" n="40"/>
done within the last six hours. Why, to hear him talk, you would
suppose that he was an old Continental lawyer, grown grey
in the service. H-i-s p-r-a-c-t-i-c-e! Why he is just in his legal
swaddling clothes! HIS PRACTICE!! But I don't wonder he
can't see the absurdity of such talk. How long does it take one
of the canine tribe, after birth, to open his eyes!</p>
        <p>“He talked, too, of <hi rend="italics">outside</hi> influences; of the <hi rend="italics">public</hi>
expectations, and all that sort of demagoguism. I observed no
evidence of any great popular demonstrations in his favor, unless
it be a tailor I saw stamping his feet; but whether that was
because he had sat cross-legged so long he wanted exercise, or
was rejoicing because he had got orders for a new suit, <hi rend="italics">or a
prospect of payment for an old one</hi>, the gentleman can possibly
tell better than I can. (Here Hicks left.) However, if this case is to
be decided by the populace <hi rend="italics">here</hi>, the gentleman will allow <hi rend="italics">me</hi> the
benefit of a writ of error to the regimental muster, to be held, next
Friday, at Reinhert's Distillery.</p>
        <p>“But, I suppose he meant to frighten <hi rend="italics">you</hi> into a verdict, by
intimating that the mob, frenzied by <hi rend="italics">his</hi> eloquence, would tear
you to pieces if you gave a verdict for defendant; like the
equally eloquent barrister out West, who, concluding a case, said,
‘Gentlemen, my client are as innocent of stealing that costing as
the Sun at noonday, and if you give it agin him, his brother, Sam
Ketchins, next muster, will maul every mother's son of you.’ I
hope the Sheriff will see to his duty and keep the crowd from
you, gentlemen, if you should give us a verdict!</p>
        <pb id="bald41" n="41"/>
        <p>“But, gentlemen, I am tired of winnowing chaff; I have not
had the reward paid by Gratiano for sifting <hi rend="italics">his</hi> discourse: the two
grains of wheat to the bushel. It is all froth—all wind—all
bubble.”</p>
        <p>Kasm left me here for a time, and turned upon my client.
Poor Higginbotham caught it thick and heavy. He wooled him,
then skinned him, and then took to skinning off the under cuticle.
Hig never skinned a beef so thoroughly. He put together all the
facts about the witnesses' hearing the hogs squealing at night; the
different marks of the hogs; the losses in the neighborhood;
perverted the testimony and supplied omissions, until you would
suppose, on hearing him, that it had been fully proved that poor
Hig had stolen all the meat he had ever sold in the market. He
asseverated that this suit was a malicious conspiracy between the
Methodists and Masons, to crush his client. But all this I leave
out, as not bearing on the main <hi rend="italics">subject</hi>—myself.</p>
        <p>He came back to me with a renewed appetite. He said he
would conclude by paying his valedictory respects to his juvenile
friend—as this was the last time he ever expected to have the
pleasure of meeting him.</p>
        <p>“That poetic young gentleman had said, that by your verdict
against his client, you would blight for ever his reputation and
that of his family—‘that you would bend down the spirit of his
manly son, and dim the radiance of his blooming daughter's
beauty.’ Very pretty, upon my word! But, gentlemen, not so
fine—not so poetical by half, as a precious morceau of poetry which
adorns the columns of the village
<pb id="bald42" n="42"/>
newspaper, bearing the initials J.C.R. As this admirable
production has excited a great deal of applause in the nurseries
and boarding schools, I must beg to read it; not for the instruction
of the gentleman, he has already seen it; but for the entertainment
of the Jury. It is addressed to R*** B***, a young lady of this place.
Here it goes.”</p>
        <p>Judge my horror, when, on looking up, I saw him take an old
newspaper from his pocket, and, pulling down his spectacles,
begin to read off in a stage-actor style, some verses I had written
for Rose Bell's Album. Rose had been worrying me for some time,
to write her something. To get rid of her importunities, I had
scribbled off a few lines and copied them in the precious volume.
Rose, the little fool, took them for something very clever (she
never had more than a thimbleful of brains in her doll-baby
head)—and was so tickled with them, that she got her brother,
Bill, then about fourteen, to copy them off, as well as he could,
and take them to the printing office. Bill threw them under the
door; the printer, as big a fool as either, not only published them,
but, in his infernal kindness, puffed them in some critical
commendations of his own, referring to “the gifted author,” as
“one of the most promising of the younger members 
of our bar.”</p>
        <p>The fun, by this time, grew fast and furious. The country
people, who have about as much sympathy for a young town
lawyer, badgered by an older one, as for a young cub beset by
curs; and who have about as much idea or respect for poetry, as
for witchcraft, joined in the mirth with great
<figure id="ill1" entity="baldwin43"><p>THE CURE OF POETRY </p></figure>
<pb id="bald43" n="43"/>
glee. They crowded around old Kasm, and stamped and roared as
at a circus. The Judge and Sheriff in vain tried to keep order.
Indeed, his honor <hi rend="italics">smiled out loud once</hi> or twice; and to cover his
retreat, pretended to cough, and fined the Sheriff five dollars for
not keeping silence in court. Even the old Clerk, whose
immemorial pen behind his right ear, had worn the hair from that
side of his head, and who had not smiled in court for twenty
years, and boasted that Patrick Henry couldn't disturb him in
making up a judgment entry, actually turned his chair from the
desk and <hi rend="italics">put down</hi> his pen: afterwards he put his hand to his head
three times in search of it; forgetting, in his attention to old Kasm,
what he had done with it.</p>
        <p>Old Kasm went on reading and commenting by turns. I forget
what the ineffable trash was. I wouldn't recollect it if I could. My
equanimity will only stand a phrase or two that still lingers in my
memory, fixed there by old Kasm's ridicule. I had said something
about my “bosom's anguish”—about the passion that was
consuming me; and, to illustrate it, or to make the line jingle, put
in something about “Egypt's Queen taking the Asp to her bosom”
—which, for the sake of rhyme or metre, I called “the venomous
worm”—how the confounded thing was brought in, I neither
know nor want to know. When old Kasm came to that, he said he
fully appreciated what the young bard said—he believed it. He
spoke of venomous <hi rend="italics">worms</hi>. Now, if he (Kasm) might presume to
give the young gentleman advice, he would recommend Swain's
Patent Vermifuge. He had no doubt that
<pb id="bald44" n="44"/>
it would effectually cure him of his malady, his love, and last, but
not least, of his rhymes—which would be the happiest passage
in his eventful history.</p>
        <p>I couldn't stand it any longer. I had borne it to the last point
of human endurance. When it came only to skinning, I was there;
but when he showered down aquafortis on the raw, and then
seemed disposed to rub it in, I fled. <hi rend="italics"><foreign lang="la">Abii, erupi, evasi</foreign></hi>. The last thing
I heard was old Kasm calling me back, amidst the shouts of the
<sic corr="audience">audidence</sic>—but no more.<lb/>
* * * * * </p>
        <p> The next information I received of the case, was in a letter that
came to me at Natchez, my new residence, from Hicks, about a
month afterwards, telling me that the jury (on which I should have
stated old Kasm had got two infidels and four anti-masons) had
given in a verdict for defendant: that before the court adjourned,
Frank Glendye had got sober, and moved for a new trial, on the
ground that the verdict was against evidence, and that the plaintiff
had not had justice, <hi rend="italics">by reason of the incompetency of his counsel,
and the abandonment of his cause</hi>; and that he got a new trial (as
well he should have done).</p>
        <p>I learned through Hicks, some twelve months later, that the
case had been tried; that Frank Glendye had made one of his
greatest and most eloquent speeches; that Glendye had joined the
Temperance Society, and was now one of the soberest and most
attentive men to business at the bar, and was at the head of it in
practice; that Higginbotham had recovered a verdict of $2000, and
had put Swink in for $500 costs, besides.</p>
        <pb id="bald45" n="45"/>
        <p>Hicks' letter gave me, too, the <hi rend="italics">melancholy</hi> intelligence of old
Kasm's death. He had died in an apoplectic fit, in the court
house, while abusing an old preacher who had testified against him
in a <hi rend="italics">crim. con.</hi> case. He enclosed the proceedings of a bar
meeting, in which “the melancholy dispensation which called our
beloved brother hence while in the active discharge of his duties,”
was much deplored; but, with a pious resignation, which was
greatly to be admired, “they submitted to the will,” &amp;c., and,
with a confidence old Kasm himself, if alive, might have envied,
“<hi rend="italics">trusted</hi> he had gone to a better and brighter world,” &amp;c., &amp;c.,
which carried the doctrine of Universalism as far as it could well
go. They concluded by resolving that the bar would wear crepe
on the left arm for thirty days. I don't know what the rest did, I
didn't. Though not mentioned in his will, he had left me something
to remember him by. Bright be the bloom and sweet the
fragrance of the thistles on his grave!</p>
        <p>Reader! I eschewed <hi rend="italics">genius</hi> from that day. I took to accounts; did up every species of paper that came into my office with a
tape string; had pigeon holes for all the bits of paper about me;
walked down the street as if I were just going to bank and it
wanted only five minutes to three o'clock; got me a green bag and
stuffed it full of old newspapers, carefully folded and labelled;
read law, to fit imaginary cases, with great industry; dunned one
of the wealthiest men in the city for fifty cents; sold out a
widow for a twenty dollar debt, and bought in her things myself,
publicly (and gave them back to her secretly, afterwards);
associated only with skin-flints,
<pb id="bald46" n="46"/>
brokers and married men, and discussed investments and
stocks; soon got into business; looked wise and shook my head
when I was consulted, and passed for a “powerful good judge of
law;” confirmed the opinion by reading, in court, all the books
and papers I could lay my hands on, and clearing out the court-house
by hum-drum details, commonplace and statistics,
whenever I made a speech at the bar—and thus, by this course
of things, am able to write from <hi rend="italics">my sugar plantation</hi>, this
memorable history of the fall of <hi rend="italics">genius</hi>
and the rise of solemn humbug!                       
</p>
        <closer>J.C.R.</closer>
      </div1>
      <pb id="bald47" n="47"/>
      <div1 type="chapter">
        <head>THE BENCH AND THE BAR.</head>
        <div2 type="subchapter">
          <p>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 <hi rend="italics"><foreign lang="la">crimen falsi</foreign></hi>—in fine, of a flush tide of
litigation in all of its departments, civil and criminal. It was
extolled as a legal Utopia, peopled
<pb id="bald48" n="48"/>
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 <hi rend="italics">placers</hi> 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.</p>
          <p>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 <hi rend="italics"><foreign lang="la">remotissima potentia</foreign></hi>, 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 <hi rend="italics">real</hi> 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, <hi rend="italics">per annum</hi>. In evidence of the correctness
of this calculation, it may be added that seven young gentlemen,
all of fine promise, were enjoying <hi rend="italics">high</hi> 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
<pb id="bald49" n="49"/>
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 <hi rend="italics">wind-sellers</hi> 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 <hi rend="italics">all</hi> to hazard —<hi rend="italics">videlicet</hi>, a pony
valued at $35, 3 pair of saddle-bags and contents, a new razor not
much needed at that early day, and $75 in Virginia bank bills.</p>
          <p>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.</p>
          <p>The transition from East Tennessee to South Western
<pb id="bald50" n="50"/>
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.</p>
          <p>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.</p>
          <p>Why he selected this particular spot for his <hi rend="italics"><foreign lang="la">locus in quo</foreign></hi>, 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.</p>
          <p>The “accommodations” at the “American Hotel” were
<pb id="bald51" n="51"/>
not such as were calculated to be-guile 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 <hi rend="italics">inn</hi>-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.</p>
          <p>In the fall of the year so scarce were provisions—bullbeef
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 <hi rend="italics">now</hi>, for
want of a new bolting cloth to his throat.</p>
          <p>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.</p>
          <p>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.</p>
          <pb id="bald52" n="52"/>
          <p>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.
<lb/>
-----</p>
        </div2>
        <div2 type="subchapter">
          <div3 type="subchapter">
            <p>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, <hi rend="italics">videlicet</hi>, 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 <hi rend="italics">via</hi> a verdict: it was a considerable triumph to get <hi rend="italics">to</hi>
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,
<pb id="bald53" n="53"/>
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
<pb id="bald54" n="54"/>
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 <hi rend="italics"><foreign lang="la">terra incognita</foreign></hi>: we
had all heard there was such a place, as we had heard of Heaven's
Chancery, to which the Accusing Spirit <hi rend="italics">took up</hi> 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. <hi rend="italics">We</hi>, of the local bar
trusted—so did our clients: it is hard to say which did the wildest
credit business.</p>
            <p>The leaders were sharp fellows—keen as briars—<hi rend="italics"><foreign lang="fr">au fait</foreign></hi> in
all trap points—quick to discern small errors—perfect in forms
and ceremonies—very pharisees in “anise, mint and
<pb id="bald55" n="55"/>
cummin—<hi rend="italics">but neglecting judgment and the weightier matters of the
law.</hi>” 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—<hi rend="italics">bark:</hi> 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.</p>
            <p>Those were quashing times, and they were the <hi rend="italics">out
quashingest</hi> set of fellows ever known. They moved to quash
every thing, from a <hi rend="italics">venire</hi> to a <hi rend="italics">subpœna</hi>: 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 <hi rend="italics">capias</hi>—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 “<hi rend="italics">the</hi>
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.</p>
            <p>Attachments were much resorted to, there being about
<pb id="bald56" n="56"/>
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—“<hi rend="italics">quashed</hi> 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.</p>
            <p>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 <sic corr="infrequently">unfrequently</sic> 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 <hi rend="italics">wanted</hi> the office, that is, were too poor and lazy to support
themselves in any other way, that was enough. If poor John
Rogers, with
<pb id="bald57" n="57"/>
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 <hi rend="italics">void and voidable</hi>. 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, &amp;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 <hi rend="italics">hang</hi> me, do you?
I don't mind these little circuit judges: wait till old <hi rend="italics">Shurkey</hi> says
the word in the High Court, and then it will be time enough to be
getting ready.”</p>
            <p>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 <hi rend="italics">pro tem</hi>. for the State, convicted
a poor Indian of murder, the Indian having only counsel
volunteering on his
<pb id="bald58" n="58"/>
arraignment; S. turned around and said with emphatic
complacency: “I tell you, gentlemen, there is a fatality attending
my indictments.” “Yes,” rejoined B., “they <hi rend="italics">are</hi> generally
quashed.”</p>
            <p>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 <hi rend="italics">vs.</hi>
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 <sic corr="unskillfully">unskilfully</sic> 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.</p>
            <p>The major part of criminal cases, except misdemeanors,
<pb id="bald59" n="59"/>
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.</p>
            <p>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 <hi rend="italics">bars</hi> to expatriation, than the jail doors
or windows.</p>
            <p>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. </p>
            <pb id="bald60" n="60"/>
            <p>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.</p>
            <p>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 <hi rend="italics">non suit.</hi>
(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 <hi rend="italics">could</hi> be justly said of mere
humanity. He rode over <hi rend="italics">us</hi> 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
<pb id="bald61" n="61"/>
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
<pb id="bald62" n="62"/>
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 presence 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.</p>
            <p>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.</p>
            <p>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
<pb id="bald63" n="63"/>
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
<hi rend="italics"><foreign lang="la">capias ad respondendum?</foreign></hi> I mean to see whether an action for
a malicious
<pb id="bald64" n="64"/>
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, “<hi rend="italics">I will this time</hi>, 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!”
<lb/>
-----</p>
          </div3>
          <div3 type="subchapter">
            <p>The case of most interest at the fall term of N-e court,
1837, was the State of Mississippi <hi rend="italics">vs.</hi> 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
<pb id="bald65" n="65"/>
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.</p>
            <pb id="bald66" n="66"/>
            <p>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.</p>
            <p>He had come from Georgia, where he had been a major in the
militia, if that is not tautology; for I believe that
<pb id="bald67" n="67"/>
every men that ever comes from Georgia <hi rend="italics">is</hi> 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.</p>
            <p>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 <hi rend="italics">posse</hi> and followed after. The
trial in the mean time proceeded—as did the Major.</p>
            <p>I said he was defended in part by W.B.T.</p>
            <p>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.
<pb id="bald68" n="68"/>
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,
<corr>a</corr>nd 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.</p>
            <p>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, <corr>‘</corr>Run! run! you d-d rascal—run!’ It is true (lowering
<pb id="bald69" n="69"/>
his voice and smiling), gentlemen, he said ‘you d-d rascal,’
but the honorable court will instruct you that that was merely
<hi rend="italics"><foreign lang="la">descriptio personæ</foreign>.</hi>” The effect was prodigious.</p>
            <p>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
<pb id="bald70" n="70"/>
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
<hi rend="italics">felicitously unhappy</hi>; 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 <hi rend="italics">this</hi> 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.</p>
            <p>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
<pb id="bald71" n="71"/>
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) <hi r