PRACTICE AT THE BAR IN EARLY DAYS IN
ARKANSAS.

BY U. M. ROSE.

Mr. President and Gentlemen of the Bar Association:

At your last meeting you did me the honor to request that I would read at the present meeting a paper on the "Early Bar in Arkansas;" a request that I accepted as a command, though I should have been glad if you had enlisted for that duty some older member of the Association, whose reminiscences might have been more varied, more interesting and more instructive.

In attempting a task, made perplexing and difficult by multiplicity rather than by the rarity of materials, I must crave your usual indulgence. I feel it is particularly needed on the present occasion; but I could not ask for more. I do not purpose to make an academic discourse. With the heterogeneous and discordant matter that I have on hand, infinitely diversified, I hardly think that the great Dr. Johnson himself could have made up a discourse of that kind.

I came to be a lawyer seemingly in a purely casual or accidental way. My parents having both died when I was about fourteen years old, I was thrown on my own resources without any very brilliant prospects. About three years later one of the best-known men in the county, by name Rutherford Harrison Rowntree, called and stayed all night at the home where I was sojourning. He had been clerk of one of the higher courts of the county for many years, and no man in the community had a more enviable reputation for good sense and incorruptible integrity. My surprise was very great when next morning he offered me a place as deputy clerk in his office; an offer which I gladly accepted.

It is to this man-practical, well-balanced and wisely considerate in all his coduct, a man of large mind and of warm heart-that I owe a debt of gratitude that could never be repaid.

For two years I remained a member of his family, treated with the same affection that he bestowed on his own children; and he remained as a father to me as long as he lived. He died

several years after I came to Arkansas. I visited him at his home in Kentucky during his last illness, and there bade a last farewell to the best and dearest friend that I ever had. He was my greatest benefactor; and if I could live for centuries his uniform kindness and indulgence could never fade from my memory. What we have gained in life we may partly compute; who can count up what we have lost?

I came to be a citizen of Arkansas in a like apparently casual way. Nothing ever happens, it is said, except the unexpected.

I had a friend, a fellow-student and room-mate, who, on graduating in the law school, was looking around for a place to locate; and, seeing an article in some newspaper about Batesville, in this State and the surrounding country, written by C. F. M. Noland, whom I afterward came to know intimately, gave it to me to read, with another personal letter from the same writer.

Noland, who is a historical character in Arkansas, was to a large extent a newspaper man, and a ready writer in general. It may be supposed that he would not underrate the attractions of the place where he lived.

I landed at Batesville, in this State, very much a youth, on the 20th day of December, 1853, after a pleasant voyage by a succession of steamboats, lasting fifteen days, during which I and my wife, whom I had lately married, found agreeable companions on the way, who fraternized with us after the kindhearted and social manner that was then customary in traveling, so that the journey seemed short; though I have since made the trip from Liverpool to Little Rock without haste in less time. I had left my books behind, so that if I should not be pleased with my intended destination I might seek some other and more favorable spot. We did not know a single person in the State; but on arriving at the end of our journey we were received with the utmost cordiality, so that in a few days we felt quite at home. The town, which then contained 1,200 or 1,500 inhabitants, is picturesquely situated on a range of hills overlooking the beautiful valley of White River, closing with a semicircle of mountains blue in the distance. It was a healthy place; and the surrounding scenery was varied and romantic. The woods were full of game, the rivers and lakes were full of fish. The cost of

living in Batesville was then so moderate that at present it would be regarded as fabulous. Contrary to what might have been expected by some, the inhabitants as a rule were rather more intelligent than would be generally found in towns of similar population in the older States. Many of them, of both sexes, were persons of reading and of general information.

For a young aspirant to legal success my opportunities were fairly good. During my two years in the clerk's office I had learned to write a legible hand-writing, had familiarized myself with the court forms in common use, and had an opportunity to listen to many trials, some of them conducted by lawyers of distinguished ability; among others by the famous Ben Hardin, a man of astonishing versatility, of inexhaustible wit, eloquence, pathos and humor, a most skilful master of the difficult art of examination of witnesses, a many-sided and original lawyer, always ready at all points and in every emergency. At that time his practice extended over several States, and he was probably the most striking figure at the bar in the Western country. I have always regarded him as the most accomplished trial lawyer that I have ever known; one who always invested the most trivial controversy with peculiar interest; one who played on juries as an accomplished musician plays on his instrument. I do not know, however, that I learned much from him; indeed, I know that I did not; for with him the question was not one of talent, but of native and inimitable genius, incapable of transmission, set off with a great wealth of learning. At that time Kentucky could boast of many lawyers of great powers of oratory, some of whom I heard at the bar with the unbounded admiration of youth.

I have always regarded the knowledge that I picked up in that period of my youthful career as being a most important part of my education, as explanatory of controversial law in its varied forms. It enabled me afterward to assist in their duties the clerks on the circuit, who were not always thoroughly competent; giving them a notion of my learning that was by no means borne out by facts. Besides, the forms embody very much of the substantive law, which becomes fixed in the memory by frequent repetition in legal verbiage.

Before leaving Kentucky I got license to practice law in the circuit court and in the court of appeals; but not with the intention of practicing in that State, as I had made up my mind to go South on account of my health, to which the winters of my native State were unfavorable. I may add that my decision proved to be well founded, as my health greatly improved in my new home from the start.

I had begun the study of law in the clerk's office; and from there I passed to the law school of the old Transylvania University at Lexington, Kentucky, which was conducted by very able professors. I studied hard while there, and did the best I could to make up for my natural defects, which were many, and graduated in September, 1853.

One thing I learned in listening to trials, and that was that a great part of the time of the courts was taken up in discussing and settling curious and technical questions of practice and procedure unrelated to the merits of the case on hand; questions which nevertheless had often a most important influence on final results; and that Chitty on Pleading was a work constantly in demand. At the law school, therefore, I endeavored to make myself perfectly familiar with this most crabbed, dry and repulsive of all law books, filled with barren technicalities having no foundation in reason or common sense. Arduous in this enterprise, with the aid of a most competent teacher, by intense application I achieved at least a tolerable success in making myself familiar with the technical side of the law; and it is fortunate for me that I did so, for I found in Arkansas identically the same hide-bound rules of pleading and practice that prevailed in Kentucky; rules that had been modified in England by the Statute of Westminster II, which was not in force in any part of the United States, having been passed after our Declaration of Independence. Chitty on Pleadings, as his book was generally called, was for some years, after my advent at the bar, the king-bee among law books; it was the only absolute authority in the law that I have ever known. It was to us of that generation as inviolable as the laws of the "Medes and Persians;" as sacred in all its many closely printed pages as the Koran to the most bigoted Mahometan. Neither in Kentucky nor in this State did I ever

hear any one question anything that was found in it. There was reason for this. If you objected to a construction put on a substantive law you would try to put something in its place; but Chitty, with all his ingenious mantraps, was a mere artificial rubric, where everything was laid down with mathematical precision; a complicated web built wholly out of fiction, with purely arbitrary arrangement; so that if you kicked out of the traces of Chitty you had no place to go.

One bringing a suit had to commence by running a gauntlet of technicalities. No wonder that in England every town where the courts were held (shire town) had its special pleaders, who lived and breathed only in Chitty, ready to advise practitioners and to prepare pleadings for them, stating necessary facts in legal language guaranteed to stand the closest scrutiny, or recommended as suited to mislead the opposite party, and befuddle the court. There were ten kinds of suits where there should have been only one, each one having an intricate code of its own; then there was the formidable array of pleas of many sorts, replications, rejoinders and rebutters, running like stepping-stones over a perilous river, to the far off and mysterious surrebutter, the dim. ultima thule of the law, the Cape Horn of the human mind, with untold dangers in ambush at every step. Under such conditions the special pleader was indeed a "sweet boon," and his services were much in demand in England. Of course, the cause of the defendant was no better, and stood in equal need of assistance. The system was the mother of delay.

I remember that in one case, when Colonel Fowler got a judgment on a note, I saw him hold it up, saying: "This is the proudest moment of my life; for this day, after six years of ardent litigation, I have got a judgment on a promissory note on which there was not even a pretense of defense."

The case had been twice to the Supreme Court on technical grounds, and had been reversed both times.

It was well said by Chief Justice Coleridge that a stranger in those days, observing the proceedings in the English law courts, might well conclude that courts were established not for the purpose of deciding litigated cases, but rather for the purpose of settling curious questions of pleading and practice. In the Ameri