Books: Minnesota and Dacotah
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C.C. Andrews >> Minnesota and Dacotah
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While testifying my approval of this code of practice as a whole, I
cannot resist saying that in many respects it is not so systematic as
the Massachusetts code, which was devised by Messrs. Curtis (now Mr.
Justice), Lord, and Chapman. That code is one of the best in the
world. And if I may be allowed one word more about special pleading, I
would say that there is no branch of law which will better reward
study. Without mentioning the practice in the U. S. courts, which
requires, certainly, a knowledge of special pleading, no one can read
the old English reports and text books with much profit, who is
ignorant of the principles of that science.
A class of business peculiar to new territories and states arises from
the land laws. A great many pre-emption cases are contested before the
land officers, in which the services of lawyers are required. This
fact will partly explain why there are, generally, so many lawyers
located in the vicinity of a land office. In a community that is newly
settled the title to property must often be in dispute; and however
much averse people may be to going to law, they find it frequently
indispensable, if they wish to have their rights settled on a firm
basis.
The opinion prevails almost universally in the East that a lawyer can
do best in the West. In some respects he can. If he cannot do a good
deal better, he is not compensated for going. I had the pleasure of a
conversation last summer with one of the most eminent members of the
New York bar (Mr. O'Connor), on this very subject. It was his opinion
that western lawyers begin sooner to enjoy their reputation than the
lawyers in the eastern cities. This is true; and results from there
being less competition in newer communities. "A lawyer among us," said
Mr. O'Connor, "seldom acquires eminence till he begins to turn gray."
Nevertheless, there is no field so great and so certain in the long
run, in which one may become really a great lawyer, as in some of our
large commercial cities, whether of the East or the West. To admit of
the highest professional eminence there must be a large and varied
business; and a lawyer must devote himself almost exclusively to law.
And then, when this great reputation is acquired, what does it amount
to? Something now, but not much hereafter. The great lawyer lives a
life of toil and excitement. Often does it seem to "break on the
fragments of a reviving dream." His nerves are worn by the troubles of
others; for the exercise of the profession, as has been said by a
brilliant lawyer, "involves intimate participation with the interests,
hopes, fears, passions, affections, and vicissitudes of many lives."
And yet merely as a lawyer, he seldom leaves any durable vestige of
his fame behind him-- hardly a fortune. But if his fame is transient
and mortal, there is some equivalent in the pleasure of triumph and
the consciousness of power. There is no man so powerful as the great
lawyer. The wealth and the character of his fellow men often depend
upon him. His clients are sometimes powerful corporations, or cities,
or states. Crowded courts listen to his eloquence year after year; and
no one has greater freedom of speech than he. The orator and
politician may be wafted into a conspicuous place for a brief period,
and fall again when popular favor has cooled; yet the lawyer is rising
still higher, nor can the rise and fall of parties shake him from his
high pedestal; for the tenure of his power is not limited. He is, too,
one of the most serviceable protectors of the liberties of his
country. It was as a lawyer that Otis thundered against writs of
assistance. The fearless zeal of Somers, in defence of the seven
bishops, fanned the torch of liberty at the beginning of the great
English revolution. Erskine and Brougham did more as lawyers to
promote freedom of the press, than as Statesmen.
I cannot refrain from inserting here Mr. Justice Talfourd's
interesting analysis of the professional abilities of Follett: "It may
be well, while the materials for investigation remain, to inquire into
the causes of success, so brilliant and so fairly attained by powers
which have left so little traces of their progress. Erskine was never
more decidedly at the head of the common law bar than Follett;
compared with Follett he was insignificant in the house of commons;
his career was chequered by vanities and weaknesses from which that of
Follett was free; and yet even if he had not been associated with the
greatest constitutional questions of his time and their triumphant
solution, his fame would live by the mere force and beauty of his
forensic eloquence as long as our language. But no collection of the
speeches of Follett has been made; none will ever be attempted; no
speech he delivered is read, except perchance as part of an
interesting trial, and essential to its story, and then the language
is felt to be poor, the cadences without music, and the composition
vapid and spiritless; although, if studied with a view to the secrets
of forensic success, with a 'learned spirit of human dealing,' in
connexion with the facts developed and the difficulties encountered,
will supply abundant materials for admiration of that unerring skill
which induced the repetition of fortunate topics, the dexterous
suppression of the most stubborn things when capable of oblivion, and
the light evasive touch with which the speaker fulfilled his promise
of not forgetting others which could not be passed over, but which, if
deeply considered, might he fatal. If, however, there was no principle
of duration in his forensic achievements, there can be doubt of the
esteem in which they were held or the eagerness with which they were
sought. His supremacy in the minds of clients was more like the rage
of a passion for a youthful Roscius or an extraordinary preacher, than
the result of deliberate consideration; and yet it prevailed, in
questions not of an evening's amusement, but of penury or riches,
honor or shame. Suitors were content, not only to make large
sacrifices for the assured advantage of his advocacy, but for the bare
chance-- the distant hope-- of having some little part (like that
which Phormio desires to retain in Thais) of his faculties, with the
certainty of preventing their opposition. There was no just ground, in
his case, for the complaint that he received large fees for services
he did not render; for the chances were understood by those who
adventured in his lottery; in which after all there were comparatively
few blanks. His name was 'a tower of strength,' which it was
delightful to know that the adverse faction wanted, and which inspired
confidence even on the back of the brief of his forsaken junior, who
bore the burden and heat of the day for a fifth of the fee which
secured that name. Will posterity ask what were the powers thus
sought, thus prized, thus rewarded, and thus transient? They will be
truly told that he was endowed, in a remarkable degree, with some
moral qualities which smoothed his course and charmed away opposition,
and with some physical advantages which happily set off his
intellectual gifts; that he was blessed with a temper at once gentle
and even; with a gracious manner and a social temperament; that he was
without jealousy of the solid or showy talents of others, and
willingly gave them the amplest meed of praise; that he spoke with all
the grace of modesty, yet with the assurance of perfect mastery over
his subject, his powers, and his audience; and yet they will scarcely
recognise in these excellencies sufficient reasons for his
extraordinary success. To me, the true secret of his peculiar strength
appeared to lie in the possession of two powers which rarely co-exist
in the same mind-- extraordinary subtlety of perception and as
remarkable simplicity of execution. In the first of these faculties--
in the intuitive power of common sense, which is the finest essence of
experience, whereby it attains 'to something of prophetic strain'-- he
excelled all his contemporaries except Lord Abinger, with whom it was
more liable to be swayed by prejudice or modified by taste, as it was
adorned with happier graces. The perfection of this faculty was
remarkably exemplified in the fleeting visits he often paid to the
trials of causes which he had left to the conduct of his juniors; a
few words, sometimes a glance, sufficed to convey to his mind the
exact position of complicated affairs, and enabled him to decide what
should be done or avoided; and where the interference of any other
moral advocate would have been dangerous, he often rendered good
service, and, which was more extraordinary, never did harm. So his
unrivalled aptitude for legal reasoning, enabled him to deal with
authorities as he dealt with facts; if unprepared for an argument, he
could find its links in the chaos of an index, and make an imposing
show of learning out of a page of Harrison; and with the aid of the
interruptions of the bench, which he could as dexterously provoke as
parry, could find the right clue and conduct a luminous train of
reasoning to a triumphant close. His most elaborate arguments, though
not comparable in essence with those of his chief opponent, Lord
Campbell-- which, in comprehensive outline, exact logic, felicitous
illustration, and harmonious structure, excelled all others I have
heard-- were delivered in tones so nicely adapted to the minds and
ears of the judges, with an earnestness so winning, and a confidence
so contagious, that they made a judgment on his side not only a
necessity, but a pleasure.
"The other faculty, to which, in combination with his subtlety of
understanding, the excellence of his advocacy may be attributed, is
one more rarely possessed-- and scarcely ever in such association--
the entire singleness of a mind equally present in every part of a
cause. If the promotion of the interest of the client were an
advocate's highest duty, it would be another name for the exactest
virtue; and inasmuch as that interest is not, like the objects of
zeal, fixed in character, but liable to frequent change, the faculty
of directing the whole power of the understanding to each shifting
aspect of the cause in its minutest shadowings without the guidance of
an inflexible law, is far more wonderful, if far less noble, than a
singleness of devotion to right. It has an integrity of its own, which
bears some affinity to that honesty which Baillie Nichol Jarvie
attributes to his Highland kinsman. Such honesty-- that is, the entire
devotion of all the faculties to the object for which it was retained,
without the lapse of a moment's vanity or indolence, with unlimited
vision and unceasing activity-- was Follett's beyond all other
advocates of our time. To the presentment of truth, or sophism, as the
cause might require, he gave his entire mind with as perfect oblivion
of self as the most heroic sufferer for principle. The faculty which
in Gladstone, the statesman, applied to realities and inspired only by
the desire to discover the truth and to clothe it in language,
assumes, in the minds of superficial observers, the air of casuistry
from the nicety of its distinctions and the earnest desire of the
speaker to present truth in its finest shades-- in Follett, the
advocate, applied indiscriminately to the development of the specious
shows of things as of their essences, wore all the semblance of
sincerity; and, in one sense, deserved it. No fears, no doubts, no
scruples shook him. Of the license which advocacy draws from sympathy
with the feelings of those it represents, he made full use, with
unhesitating power; for his reason, of 'large discourse,' was as
pliable as the affections of the most sensitive nature. Nor was he
diverted from his aim by any figure or fancy: if he neither exalted
his subject by imagination, nor illustrated it by wit, nor softened
its details by pathos, he never made it the subject of vain attempts
at the exhibition of either. He went into the arena, stripped of all
encumbrance, to win, and contended studious only and always of
victory. His presence of mind was not merely the absence of external
distraction, nor the capacity of calling up all energies on an
emergency, but the continued application of them equally to the duty
of each moment. There are few speakers, even of fervid sincerity and
zeal, whose thoughts do not frequently run before or beside the
moment's purpose; whose wits do not sometimes wander on to some other
part of the case than that they are instantly discussing; who do not
anticipate some future effect, or dally with some apprehension of
future peril, while they should consider only the next word or
sentence. This momentary desertion of the exact purpose never occurred
to Follett; he fitted the thought to its place; the word to the
thought; and allowed the action only to take care of itself, as it
always will with an earnest speaker. His, therefore, was rather the
artlessness than the art of advocacy-- its second nature-- justly
appreciated by those to whose interests it was devoted; but not fully
understood even by the spectator of its exertion; dying with the
causes in which it was engaged, and leaving no vestiges except in
their success. Hence the blank which is substituted for the space he
filled in human affairs. The modest assurance, the happy boldness, the
extemporaneous logic, all that 'led but to the grave,' exist, like the
images of departed actors, only in the recollection of those who
witnessed them, till memory shall fade into tradition, and tradition
dwindle down to a name." (Supplement to Vacation Rambles, p. 115.) The
eagerness with which the talents of Sir William Follett were sought,
forcibly illustrates the truth of a remark, made to me in the course
of some friendly advice, by one who may be ranked among the most
brilliant advocates who have adorned the American Bar (now in the
highest office in the nation), that to attain the highest rank in the
legal profession, a lawyer must have such abilities and character as
will "compel" patronage.
He, however, who enters the profession here or elsewhere merely as a
stepping stone to political preferment, need not expect great success,
even though he may acquire some temporary advancement. The day is past
when lawyers could monopolize every high place in the state. The habit
of public speaking is not now confined to the learned professions. Our
peculiar system of education has trained up a legion of orators and
politicians outside of the bar. Now-a-days a man must have other
qualifications besides the faculty of speech-making to win the prize
in politics. He must be a man of comprehensive ability, and thoroughly
identified with the interests of the people, before he can secure much
popular favor, or else he must be possessed of such shining talents
and character that his fellow men will take a pride in advancing him
to conspicuous and responsible trusts. Let a man have a part or all of
these qualifications, however, and with them the experience and tact
of a lawyer, and he will of course make a more valuable public
servant, especially if he is placed in a deliberative body. The
British cabinets have always relied vastly on the support afforded
them in the house of commons by their attorneys and solicitors
general, whether it consisted in the severe and solemn logic of
Romilly, in the cool and ready arguments of Scarlett, or the acute and
irresistible oratory of Sir William Follett. The education of a
lawyer;-- his experience as a manager; his art of covering up weak
points, his ready and adroit style of speaking;-- all serve to make
him peculiarly valuable to his own party, and dangerous to an
opposition in a deliberative body. But the fact that a man is a lawyer
does not advance him in politics so much as it once did. Fortunate it
is so! For though learning will always have its advantages, yet no
profession ought to have exclusive privileges. Nor need the lawyer
repine that it is so, inasmuch as it is for his benefit, if he desires
success in the profession, to discard the career of politics. The race
is not to the swift, and he can afford to wait for the legitimate
honors of the bar. I will conclude by saying that I regard Minnesota
as a good field for an upright, industrious, and competent lawyer. For
those of an opposite class, I have never yet heard of a very promising
field.
LETTER V.
ST. PAUL TO CROW WING IN TWO DAYS.
Stages-- Roads-- Rum River-- Indian treaty-- Itasca-- Sauk Rapids--
Watab at midnight-- Lodging under difficulties,-- Little Rock River--
Character of Minnesota streams-- Dinner at Swan River-- Little Falls--
Fort Ripley-- Arrival at Crow Wing.
CROW WING, October, 1856.
HERE I am, after two days drive in a stage, at the town of Crow Wing,
one hundred and thirty miles, a little west of north, from St. Paul. I
will defer, however, any remarks on Crow Wing, or the many objects of
interest hereabout, till I have mentioned a few things which I saw
coming up. Between St. Paul and this place is a tri-weekly line of
stages. The coaches are of Concord manufacture, spacious and
comfortable; and the entire equipage is well adapted to the
convenience of travellers. Next season, the enterprising proprietors,
Messrs. Chase and Allen, who carry the mail, intend establishing a
daily line. I left the Fuller House in the stage at about five in the
morning. There was only a convenient number of passengers till we
arrived at St. Anthony, where we breakfasted; but then our load was
more than doubled, and we drove out with nine inside and about seven
outside, with any quantity of baggage. The road is very level and
smooth; and with the exception of encountering a few small stamps
where the track has been diverted for some temporary impediment, and
also excepting a few places where it is exceedingly sandy, it is an
uncommonly superior road. It is on the eastern bank of the
Mississippi, and was laid out very straight. But let me remark that
everybody who travels it seems conscious that it is a government road.
There are several bridges, and they are often driven over at a rapid
rate, much to their damage. When Minnesota shall have a state
government, and her towns or counties become liable for the condition
of the roads, people will doubtless be more economical of the bridges,
even though the traveller be not admonished to walk his horse, or to
"keep to the right," &c.
Emerging from St. Anthony, the undulating aspect of the country
ceases, and we enter upon an almost unbroken plain. A leading
characteristic of the scenery is the thin forests of oak, commonly
called oak openings. The soil appears to be rich.
Seven miles from St. Anthony is a tidy settlement called Manomin, near
the mouth of Rice river. But the first place of importance which we
reached is Anoka, a large and handsome village situated on Rum river.
It is twenty-five miles from St. Paul. The river is a large and
beautiful stream and affords good water-power, in the development of
which Anoka appears to thrive. A vast number of pine logs are annually
floated down the river and sawed into lumber at the Anoka mills. The
settlers are principally from Maine. By the treaty of 22d February,
1855, with three bands of the Chippewa Indians, an appropriation of
$5000 was set apart for the construction of a road from the mouth of
Rum river to Mille Lac. The road is half completed.
We took an early dinner at Itasca, having come thirty-two miles.
Itasca is quite an unassuming place, and not so pretty as its name.
But I shall always cherish a good-will for the spot, inasmuch as I got
a first-rate dinner there. It was all put upon the table before we sat
down, so that each one could help himself; and as it consisted of very
palatable edibles, each one did help himself quite liberally. We
started on soon afterwards, with a new driver and the third set of
horses; but with the disagreeable consciousness that we had still
before us the largest part of the day's journey. In about three hours
we came to Big Lake, or, as it is sometimes called, Humboldt. The lake
is anything but a big lake, being the size of a common New England
pond. But then all such sheets of water are called lakes in this part
of the country. It is a clear body of water, abounding with fine fish,
and has a beautiful shore of pebbles. Several similar sheets of water
are passed on the journey, the shores of which present a naked
appearance. There is neither the trace of a stream leading from or to
them, nor, with few exceptions, even a swamp in their vicinity.
Sauk Rapids is 44 miles from Itasca, and it was late when we reached
there. But, late as it was, we found a large collection of people at
the post office waiting for the mail. They appeared to have had a
caucus, and were discussing politics with much animation. There is at
Sauk Rapids a local land office. That is of more advantage to a place
than being the county seat. In a short time, however, some of the land
offices will be removed further west for the convenience of settlers.
The village is finely situated on rising ground, and contains some
handsome residences.
It was midnight when we arrived at Watab, where we were to lodge. The
weather had been delightful during the day, but after nightfall a high
wind rose and filled the air with dust. I descended from the stage--
for I had rode upon the outside-- with self-satisfied emotions of
having come eighty-two miles since morning. The stage-house was
crowded. It is a two-story building, the rooms of which are small. I
went to bed, I was about to say, without any supper. But that was not
so. I didn't get any supper, it is true, neither did I get a bed; for
they were all occupied. The spare room on the floor was also taken.
The proprietor, however, was accommodating, and gave me a sort of a
lounge in rather a small room where three or four other men, and a
dog, were sleeping on the floor. I fixed the door ajar for
ventilation, and with my overcoat snugly buttoned around me, though it
was not cold, addressed myself to sleep. In the morning I found that
one of the occupants was an ex-alderman from the fifth ward of New
York; and that in the room over me slept no less a personage than
Parker H. French. I say I ascertained these facts in the morning. Mr.
French came to Watab a few weeks ago with a company of mechanics, and
has been rushing the place ahead with great zeal. He appears to make a
good impression on the people of the town.
A heavy rain had fallen during the night; the stage was but moderately
loaded, and I started out from Watab, after breakfast the next
morning, in bright spirits. Still the road is level, and at a slow
trot the team makes better time than a casual observer is conscious
of. Soon we came to Little Rock River, which is one of the crookedest
streams that was ever known of. We are obliged to cross it twice
within a short space. Twelve miles this side we cross the beautiful
Platte River. It would make this letter much more monotonous than it
is, I fear, were I to name all the rivers we pass. They are very
numerous: and as they increase the delight of the traveller, so are
they also a delight and a convenience to the settler. Like the rivers
of New England, they are clear and rapid, and furnish abundant means
for water-power. The view which we catch of the Mississippi is
frequent, but brief, as the road crosses its curves in the most direct
manner. Much of the best land on either side of the road is in the
hands of speculators, who purchased it at public sale, or afterwards
plastered it over with land warrants. There is evidence of this on the
entire route; for, although we pass populous villages, and a great
many splendid farms, the greater part of the land is still unoccupied.
The soil is dark colored, but in some places quite mealy; everywhere
free from stones, and susceptible of easy cultivation.
We arrived at Swan River at about one o'clock, where we dined on wild
ducks. That is a village also of considerable importance; but it is
not so large as Little Falls, which is three miles this side. At that
place the Mississippi furnishes a good water power. It has a spacious
and tidy hotel, several stores, mechanics' shops, a saw-mill, &c. At
Belle Prairie we begin to see something of the Chippewas. The
half-breeds have there some good farms, and the school-house and the
church denote the progress of civilization. It was near sunset when we
reached Fort Ripley. The garrison stands on the west bank of the
Mississippi, but the reservation extends several miles on both sides.
The stage crosses the river on the ferry to leave the mail and then
returns. The great flag was still flying from the high staff, and had
an inspiring influence. Like most of our inland military posts, Port
Ripley has no stone fortifications. It is neatly laid out in a square,
and surrounded by a high protective fence. Three or four field-pieces
stand upon the bank of the river fronting it, and at some distance
present a warlike attitude. The rest of the trip, being about five
miles, was over the reservation, on which, till we come to Crow Wing,
are no settlements. Here I gladly alighted from the coach, and found
most comfortable and agreeable entertainment at a house which stands
on the immediate bank of the river.
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