The Country Lawyer

I

I CAME to the bar almost twenty years ago in the small American city near which I was born and in which I was brought up and educated. It had then a population of less than fifty thousand, but it was the centre of a rich agricultural county so bounded by hills and by a great river as to form a naturally distinct geographical and political unit. The county had been settled half a century before the Revolution, and had existed as a separate judicial district for almost a century. In its courts James Buchanan, Thaddeus Stevens, and a score of other great lawyers had practised, and at the time of my admission to practice there were members of its bar who not only remembered the giants of other days but who had shared in and were able to transmit a legal tradition which stretched unbroken to 1729. In this community I have passed the whole of my professional life, and in the course of it I have perforce written deeds and wills, organized corporations and issued bonds, settled estates and searched titles, and tried every sort of civil action from replevin to divorce and every sort of criminal case from assault and battery to murder. I have, in short, for better or worse, lived the life of what the profession knows as a country lawyer.

Now the true test of the country lawyer is not the size or importance of the community in which he does his work, but rather the sort of work which he does and the sort of people for whom he does it. Some years ago I met a member of the bar of New York who was employed by a society engaged solely in the apprehension and prosecution of men who had married and deserted Jewish women. From year’s end to year’s end he traveled from place to place trying desertion cases, and I venture to say that he knew more at first hand about the comparative law of desertion throughout the United States than any authority living. Such a man is obviously not a country lawyer, no matter where he may practise. On the other hand I remember with pleasure a conversation which I had not long ago with an old man who had practised for almost half a century in a remote county, whose largest town has less than three thousand inhabitants. In the course of our conversation he referred to himself as a country lawyer, and a moment afterward, in making some reference to me, made it clear that he regarded me as exactly the opposite. I think, however, that he was mistaken. If a lawyer performs every sort of legal service for every sort of client, — the poor and the lowly as well as the rich and the well born, — he is, within my definition at least, a country lawyer, and no mere arbitrary distinction, based on density of population or the like, can make him anything else.

II

Every sort of legal service for every sort of client — the very phrase brings to my mind a succession of pictures, some of them amusing, some of them tinged with sadness and tragedy, and some of them altogether gracious and lovely. There are memories, such as must come to every lawyer, of the routine of consultations and settlements, of trials by jury and hearings before magistrates, of wills made in extremis, and secret sorrows and disgraces unknown to the world at large. There are likewise memories — no less clear, but less directly connected with the law — of long drives to sales, a legal brother beside me in a buggy hired at a livery stable, and of unhurried talk about men and books as our horse jogged through the quiet countryside; of the sales themselves, with half a township as witnesses if not as bidders, the voice of the auctioneer rising and falling and his chosen clerk keeping a record of purchases and making change with miraculous efficiency;¹ of road views, where a keg of beer was as essential a part of the proceedings as the presence of the viewers themselves; and of a score of other aspects and incidents of rural civilization, some of which have passed away, never to return, during the term of my own practice.

Of these recollections there is none which gives me greater pleasure than that of the country surveyor at work. Ordinarily there is no reason why a lawyer should be present at the making of a survey, but on one or two occasions some real or anticipated dispute about the meaning or effect of a deed has made it desirable that I should actually see the lines run on the ground. Now all our land titles are founded upon grants from the original proprietor, and just as, in Eastern mythology, the world rests upon the back of an elephant, which, in turn, stands upon a turtle, so the proprietor obtained his title from King Charles II, and it is as much a piece of impertinence to ask the source of the King’s title as to inquire what the turtle stands on. Of course not every piece of land may actually be traced to the original proprietor, on account of lost deeds or the like, but many of them may, and I know of one tract, oddly enough a small one, whose present description is precisely the same as that contained in the first grant.

The running of boundary lines necessarily depends upon the location of landmarks, and the true worth of a country surveyor depends much less upon his skill with a transit than upon the accuracy of his information — necessarily acquired either by personal experience or by tradition — as to where these landmarks are to be found. The deeds refer to them only in general terms—‘beginning at a white oak, a corner of lands of John Doe,’ thence by a certain course so many perches to ‘a stone,’ thence to ‘an iron pin,’ or to ‘a black oak,’ and so on. With such a description, a city-bred surveyor, however expert he may be, is as helpless in the setting of a disputed fence as a lawyer. I have stood on a wooded hillside looking for a stone, — such a stone as might seem to serve as a monument, — but seeing only white oaks (disturbingly numerous) and feeling only a sense of the futility of learning. Confronted by such a problem, the country surveyor lays aside for a moment the calling in which he is perhaps compelled to earn the greater part of his livelihood, and, not without a proper consciousness of the burden of responsibility resting upon him, comes grandly into his own. The question involved is rather of fact than of law, and its solution depends upon knowledge possessed by him alone. Surely there is nothing finer than the air with which, ignoring suggestions, he strides — it would be a slander to say jumps — into a bramble bush and scratches out, not his eyes, but the very stone which was pointed out to him by his grandfather, also a surveyor, half a century before.

On the witness stand in a courtroom he is a far less satisfying figure than on his native hills, because, all things being equal, erudition is always less satisfying than knowledge. In the country his worth and skill are self-demonstrating — the event itself speaks. But before a judge and jury he must justify himself and his profession in words, and he feels that, in order to do so, he must be given an opportunity by the lawyer who calls him as a witness to explain the variations in the magnetic compass. This is a mysterious subject, whose relation to the actual practice of surveying may, for all I know, be slight or none, but every country surveyor expects to have his qualifications as an expert tested in court by being interrogated about it. The question is no sooner on the lips of counsel than the answer is ready. In the year 1700 the magnetic compass pointed five degrees to the west of the true geographical north. Between 1700 and 1800 it moved four degrees to the eastward and so on. I doubt whether any respectable number of jurors have been much enlightened by the recital, but a disappointed witness sometimes means, in the end, a disappointed client, and five minutes devoted to the eccentricities of the compass are not too big a price to pay in order to put a witness at his ease.

III

It has been said that the trial of cases is the culmination of the lawyer’s art, and, in the matter of dramatic intensity and interest, murder cases, as much in the country as elsewhere, are in a class by themselves. It is true that before country judges the point at issue is, as a rule, — whether wisely or not, — tried much more strictly than in the big cities, and that witnesses are more rarely permitted to unfold in their testimony the entire stories of their lives. In my own county I am satisfied that the trial of Thaw, for example, would not have lasted, at the most, more than three days. It is likewise true that juries in murder cases are secured much more rapidly in the country than in cities. The original theory of trial by jury was that an accused person ought to be tried by a jury selected from his vicinage or neighborhood, because the jurors, being his neighbors, would be likely on that account to know something about him at first hand, and some tradition of this theory has persisted in the country, so that an intimate and detailed examination of prospective jurors with a view to uncovering some possible bias is not ordinarily permitted. Indeed — and apart from any theory — it would be impossible in many rural jurisdictions to secure twelve citizens who, if the defendant was a native of their county, did not know him, or at least know something about him.

But, making due allowance for the incidental differences in practice which tend to make a murder trial in the country less sensational than elsewhere, the essentials of legal solemnity and human interest necessarily remain. In my state the formal arraignment of the accused has been abolished in all cases except trials for murder, and there is a strangeness, as of another age, in hearing the clerk ask the prisoner how he will be tried and in hearing the prisoner, usually prompted by his counsel, reply, ‘By God and my country.’ Then, too, the selection of a jury, though never a question be asked by the attorneys on either side, presents to the prisoner and his counsel a series of decisions on which life and death literally depend, and each of which seems more momentous than the last until only the twelfth juror remains to be chosen. The prospective juryman, on his name being called, presents himself at the entrance to the jury box, and the clerk, standing facing him, asks the three time-honored questions — whether he has such conscientious scruples as would prevent him from rendering a verdict of guilty of murder in the first degree, the penalty being death, if the evidence should warrant the same;² whether he has formed such an opinion as would prevent him from rendering a verdict in accordance with the evidence; and whether he can be perfectly impartial between the Commonwealth and the prisoner. If the answers of the juror do not disqualify him, the clerk then says, ‘Juror, look upon the prisoner. Prisoner, look upon the juror. How say you, challenged or not challenged?’ If the prisoner’s attorney knows his business and has had reasonably good luck, a few, though perhaps a very few, of his original twenty peremptory challenges remain, and there is a tense moment during which he consults his jury list or engages in a whispered colloquy with his client. If the juror comes from the regular panel, counsel for the defense probably knows something about him, but if there has been a special venire, as usually happens before the twelfth juror has been selected in a murder case, there is nothing to do except to judge by appearances and be governed accordingly. Old practitioners will tell you that in such cases butchers, carpenters, and all those who habitually handle edged tools are to be avoided. However kindly they may be personally, they will bring in verdicts of murder in the first degree more readily than other men. The juror looks about him, uncertain whether to walk into the jury box or to return to his seat. Though the other eleven jurors would vote to acquit, this man may persuade them to find a verdict of guilty. On the other hand, his voice alone may save the defendant. Everything seems to depend upon him. ‘ Pass the juror,’ says counsel for the accused. The judge looks up quickly and clears his throat. There is a long sigh from the spectators. The trial is ready to begin.

IV

If the trial of cases is, for those who participate in it, a universal experience wherever the jury system is in force, there are other activities of the country lawyer which have no parallel in the practice of his brothers in the large cities. There is, for instance, the work of conveyancing — an art which is inextricably connected in my mind with a local custom known as ‘the first of April rush.’ It is said that the date was determined in the first place by the fact that tobacco — which, for time out of mind, has been one of our principal crops — was invariably paid for in the spring; but, be that as it may, the custom itself resulted from the existence of a state of society sufficiently simple to permit a farmer to transact the whole of his annual worldly business, other than farming, between the morning and evening of a single day. From one April to another he lived entirely upon credit, paying no bills, and expecting none to be paid. On the first of every April, rain or shine, he went to the county seat, and, having established himself at a hotel, called upon his banker and withdrew enough money to meet his needs. Sometimes, indeed, he withdrew his entire balance in order to assure himself that it had been safely kept, and, because of the crowd within, counted it sitting on the curb in front of the bank. When his financial arrangements had been completed, he set about meeting his debtors and creditors, seeking them at the offices of their lawyers and being sought by them at his lawyer’s office, paying only in cash and receiving payment in like manner. When evening fell he was in the enviable condition of the Miller of the Dee — all his accounts were closed. He returned his funds to the bank, which had obligingly remained open to receive them, and went home for one year.

This is ‘the first of April rush,’ as it was when I came to the bar and as it had been for upward of a century before. It is not exactly so now — the use of checks is much greater than formerly and the crowds on the streets are smaller. Village banks and stores have taken over a considerable part of the business. There are fewer entire families in attendance and fewer hangers-on. To a large extent, however, the principle of an annual settlement day remains. It began with the farmer, but it did not end there. In a city of sixty thousand inhabitants, nine leases out of every ten run from April to April. All mortgages, except by special agreement, are made payable on April first. Not only are the conveyances of all farms fixed for that day, but of a large proportion of properties in the city as well.

The result is bedlam indescribable. There are titles to search, leases, deeds, and mortgages to prepare and have executed, liens to be satisfied, and settlements to attend. Let no sophisticated metropolitan practitioner talk to me in this connection about the obligations of efficiency. Nothing is harder to change than a custom, and against this particular custom the veriest efficiency expert would break himself in vain. Of course, the requisite legal papers may be prepared in advance, but there is no way to compel a seller to sign and deliver a deed until the buyer is ready to pay over the purchase price and no way to compel a buyer to pay the stipulated price until he is in funds and the seller is able to deliver possession. I have never been able to complete more than six or, at the most, eight settlements in a day, and yet on a certain twenty-fifth of March a number of years ago I was confronted with one hundred and eight settlements supposedly to be made on the first of April by myself and a single assistant. In such a situation there is nothing to do except to get to the office as early as one can in the morning, stay there as long as one can stay awake, and hope for the best. The great day will pass, what remains undone will be finished somehow in the days that follow, and peace will come with the spring.

And yet, when the tumult and the shouting have died and the buyers and sellers have departed, not all the incidents of the April season are vexing or unpleasant ones. I remember in particular an old man, a farmer, who for many years made me his annual visit on the first of April. He had a small amount of money invested in mortgages, and invariably there was some change in his investments about which he wished to consult me, or at least the necessity for a trip to the courthouse in order to enter a receipt for principal paid on account. On a certain first of April I saw him early in the morning, sitting as usual in the reception room of my office, but I knew of no business of his requiring my attention that year and I was too busy to speak to him at length. He waited patiently for me all morning, and, though I have no doubt that he went for dinner during the noon hour, he must have returned to his place immediately afterward, because I noticed him there from time to time during the course of the afternoon. Evening had fallen and the crowds had melted away before I had an opportunity to invite him into my private office for an interview. When we had shaken hands and seated ourselves, I asked him to tell me what business had brought him to the city. I shall never know whether he had come to value our annual conferences for their own sake and was unwilling to admit, even to himself, that a time had come when there was a less valid reason for them than formerly, or whether, in the simplicity of his heart, he credited me with a greater store of wisdom than I possess, but he answered only that he was considering buying a new plough, and that he wanted to know what I thought about it.

Now I am unfortunately blessed with no knowledge whatever about farming, but we had, nevertheless, an unhurried talk for perhaps ten minutes about farming in general and ploughs in particular, and in the end we decided to buy the plough. I went to the outer door with my friend and said good-bye to him there, intending to return to my desk. The stenographers had left for the day and the office was empty. Suddenly I realized that I was very tired and that it was time to stop work. I got my hat, locked the door, and walked out into the April twilight with wet eyes.

V

I will not say that one who is not touched and humbled by such an incident as this is a bad man, but I think that he will never be entirely happy or successful as a country lawyer. A measure of compensation for small fees and for the lack of great causes is to be found in that sense of legal totality which comes from a general practice. There is a picture — surely familiar to every lawyer who studied for his profession in the office of a preceptor — which shows the law as a gigantic tree, its roots buried in the common earth and its top reaching to the heavens. From its trunk grow the alternating branches of property and persons, of contracts and torts, of crimes, remedies, and government. The subject of equity is reduced to a small limb and bankruptcy to an even smaller one, while injunctions appear as a twig no thicker than the stem of a leaf. I like to think that, at one time or another, I have perched on almost every limb of that tree.

But the chief compensation of the country lawyer is the richness of his share in the heritage which belongs of right to all the members of the three learned professions. Doubtless in the old sense there are no longer any learned professions. The architect, the engineer, the journalist, the scientist, and a hundred others have, indeed, fed as well upon learning as the physician, the lawyer, and the divine, but the old magic authority of learning — the old faith that education necessarily, or at least presumably, brings wisdom and goodness to its possessor — is as dead as that benefit of clergy which once served, with whatever injustice, to express it. And yet, because the great experiences of men are still births and deaths, their great concerns health, liberty, and happiness, and their great aim salvation, the three learned professions remain, as obviously as ever, in a place apart. After all, learning was never more than one of their incidental distinctions. Now, as always, their true distinction lies less in their achievements than in their purposes and in the resulting intimacy and beauty of those human relationships which occur so frequently in the life of the country lawyer. Whether or not his training has made him learned, his experience ought to make him wise and good.

It is not true that only God can make a tree. The Devil could make a tree if he tried, but only God can make men and women. With all of them we stand in jeopardy, and by some of them, it seems to me, He saves us every hour.