THE ADVOCATE.
At the opening of the Court on Thursday, the court room was crowded.
The interest in the case was general, and the character of the
facts, and principal witnesses for the defense, was such as appealed
powerfully to the memories and early associations of the people, and
there was an earnest desire to hear the speech of the young advocate,
whose management of the case had so far, won for him the heartiest
admiration.
When the jury had answered to their names, "Mr. Ridgeley, proceed with
your argument," said Judge Humphrey. The young man rose, bowed to the
Court and jury, and stood silent a moment, with his eyes cast down,
and it was at first thought on his rising for his speech, that he
was laboring under embarrassment. When he raised his eyes, however,
embarrassed as he certainly was, and commenced with a low sweet voice,
it was discovered that his faltering was due mainly to the emotions
of sensibility. Nature had been liberal in bestowing many of
the qualifications of a great advocate upon him. He had a strong
compelling will, when he chose to exercise it, which in the conflicts
of the bar often prevails, and courage of a chivalrous cast, which
throws a man impetuously and audaciously upon strong points, and
enables him to gain a footing by the boldness and force of his onset.
Barton was one to lead a forlorn hope, or defend a pass single handed,
against a host. Without something of this quality, a great advocate is
impossible.
With a warm, poetic imagination, Nature had given him quick perceptive
powers, and the faculty of expressing his thoughts without apparent
effort, in simple, strong language, as well defined, and sharply
cut as a cameo. Beyond this, and better than all, was a tender,
sympathetic sensibility; which, if it sometimes overmastered him, made
him the master of others. The commonest things in his hands took
the motion and color of living things. It was not the mere sensuous
magnetism of powerful physical nature; but it excited the higher
intellectual sympathies, which in turn awoke and captivated the
reasoning and reflective organs, that found themselves delightfully
conducted along a natural and logical course, that led them
unconsciously to inevitable conclusions and convictions, ere the
danger was perceived, or an alarm was sounded.
On the present occasion, he had not been on his feet five minutes ere
it was felt that a real power, of an unusual order, was manifesting
itself.
The case was not one framed or arranged with any vulgar reference to
a forensic display. Cases never will get themselves up for any
such occasion; and if the lawyer waits for such a case, he will die
unknown. Cases spring out of dry, hard contentions, with nothing
but vulgar surroundings; and it is to these, that the real advocate
applies himself, breathes upon them the breath of genius and creative
power, and clothes them with life, and interest, and beauty, endows
them with his own soul and imagination, and lifts them from the
level of the common to the height of the remarkable, the unusual, and
sometimes of the wonderful; and endeavors to establish between them,
and a jury and himself, the bonds of intense sympathy, upon which
their emotions and sensibilities will come and go, as did the angels
on the dream-ladder of the patriarch.
In the advocate's hour of strength and glory, the formulas of the
law burst their mouldy cerements and leap forth into life, tender
and beautiful to protect, or awful to warn or punish. Mysteries are
unfolded, secrets reveal themselves, hidden things are proclaimed, and
courts and juries, awed and abashed, yet elevated and inspired, accept
and act upon his conclusions as infallible. For one hour he touches
the pinnacle of human achievement.
After all, the effectiveness of the advocate is not so much in what
he says, as in the way he says it. One man with real strength arises
outside, and batters and bangs with real power, deals forcible blows,
and yet does not carry his point; while another, with less intellect,
gets up within the charmed circle of the sympathies, by the warm,
human side of a jury, whom they don't think of resisting, and could
not if they tried.
The speaker usually rises a little outside of the subject, on a sort
of neutral ground, and Bart made the transit of this, naturally and
simply. He graphically explained to the jury those legal phantoms,
John Doe and Richard Roe; how Richard was always maltreating and
dispossessing John, and how John was always going to law with Dick,
and was hence an immense favorite with lawyers; and how, when Dick is
sued, he always, having got up a muss, notifies the actual party in
possession, and who ought to have been sued; tells him he must look
out for himself, and hurries off to find where John has squat himself
into other property; and thereupon he thrusts him out again, and so
on. It was a fiction invented by the English lawyers to try the right
of two parties to the possession of real estate; because they could
do it in no other way, and the 4th of July had not freed us from this
relic of antiquity. The issue here was, whether Fisk had a better
right to the possession of this land, than had Cole; and whatever did
not in some way help to enlighten them on that issue, had no business
to be said at all.
In a few happy strokes, he sketched the defendant buying this land,
packing up, bidding adieu to the dear down-country home, and his
toilsome journey into the woods, arrival, and purchase, and poor,
hard life of toil and deprivation: here was his all. He sketched the
plaintiff as a well or ill-to-do gentleman, of a speculative turn of
mind, whose eye coveted the rich bottom-lands of the defendant; and
finding him helpless and poor, searched out the weak place in his
title, hunted up obscure relatives, and procured for a song sung by
themselves, their signatures to a deed of property of which they had
never heard; he had proven that John Williams, Junior, son of John
Williams, Senior, was born out of wedlock, had gone grubbing back into
forgotten burying-places, and disinterred the dead, searched out the
weakness of their lives; had raked out a forgotten scandal, carefully
gathered it up in its rottenness, and had poured it out, before the
jury; and the frailty and infamy of an unhappy woman, and the crime of
one wretched man, were the sole virtue and strength of his case--sole
source of his title to the land in dispute. And the plaintiff demanded
that the law in its honor should now rob poor Cole of his homestead,
and of the graves of his children, that John Fisk--or rather, Sam
Ward--might possess that to which he had just the same moral right,
that Dr. Myers had to the horses he stole. And this learned Court, and
gentlemen of the jury, pioneers in these receding woods, are to be the
instruments of this transfer.
The language was simple and plain, the imagery bold and striking,
and the closing sentences were pronounced with great fervor. The jury
shrank from the issue, which might have a possible conclusion, and
looked eagerly for any escape, as jurors will.
The young advocate clearly opened out the nature of the defence of
adverse possession, and the philosophy upon which it rested; and
explained that the defendant, to meet the plaintiff's paper case, must
show that he and those under whom he claimed, had been in the open,
continued, and notorious possession of the property for twenty years,
before suit was brought, claiming to be the owners. This the defendant
was to show, at the peril of destruction; and in a few happy sentences
he brought the jury to feel an intense anxiety that he should succeed.
Then he turned back the years, blotted out the highways, re-planted
the forests, till the court house dissolved, and a wondrous maple
wood crowned the hill on which it stood. And so back, till the Indians
returned, and elk and panthers roamed at will. Then he pointed out
a sorrow-stricken, moody, brooding man, seeking a "lodge in the vast
wilderness," hunting the spring, and building his shanty, making his
clearing, and planting a few apple seeds, brought from his old home;
and picking up the section of the tree trunk, he read off from its
end, "twenty-nine years ago!"
He sketched in rapid, natural lines, the life of the recluse, the
necessities of his situation, his keeping cows, and the means of
restricting their range; dwelt upon the evidence of the tree fences,
and argued that the fact that two of them were used for that purpose,
was conclusive that the other sides were also fenced, for without them
no enclosure could exist. And he referred to the well known universal
custom of that early day.
Lord! how those old and somewhat mythical tree fences grew, and came
out under his hands! The hunters had herded elk in their angles;
bears had been trapped in their jungles; the doe hid her fawn in their
recesses; wolves and foxes had found lairs in them; birds had built
nests in them; men in search of strayed cattle had climbed upon them
to listen for the tinkling bell; balm and thyme, wild sun-flowers and
celandine had made them fragrant with perfume, and bright with color.
Basil Hall went to that spring, and built and occupied, because he
owned it. His very settlement and occupancy was a proclamation of
ownership--an assertion of right--the most satisfactory, and so the
Court would say. Here he read from the Ohio Reports, to show that a
parol claim, without any written color of title, was sufficient to
make the claim. He then referred to the evidence of Bullock, that Hall
did by word claim such right; that the claim was acknowledged by Cole,
who bought and paid for it. If Hall had been without claim of right,
Cole would have turned him out; but he acknowledged it, bought,
got it, and held it. The word of Ward could not be taken; he was
interested; if taken, it could not be believed; if believed, it proved
nothing, for the admission of Hall to him, that he had no right,
was made after Hall had sold out, and hence not evidence against the
purchaser, all of which he forcibly illustrated; and the proposition
was conceded to be law. He claimed that this defence under the
purchase from Hall, was perfect in itself.
His defence of Bullock from the attack on him, was forcible and
beautiful. The old man was a hunter, had been a soldier, etc., and the
unforgotten Indian battles of the recent war flashed before the jury,
and all the sylvan romance of a hunter's life was reproduced as by
magic.
In the second place he contended that Cole made an absolute defense
on his claim of title under his deed; no matter though John Williams,
Junior, was the bastard of a bastard; his deed was good to make a
claim of title under, by the common law of England, and that of every
State of the United States; and he read authorities to the Court.
He then showed pretty conclusively that Cole left Connecticut in the
spring of 1817, and was not a year and two months on the road; that
he came in in 1817, and not in 1818; and this, he said he would
demonstrate. John Fowler, Hiram Fowler's son, had sworn positively
that his father worked for Cole, repairing the fence on the north.
Ward swore to the same; he had told this one bit of truth by some
unaccountable accident; so that the plaintiff had also proven that
Hiram Fowler had worked for Cole on this land, and hence Cole was in
possession of it in the lifetime of Fowler. When did Fowler die?
"Now," said Bart, "I will read from this probate record, already put
in evidence, but not read," and he opened and read from the record
of the Court, begun and held in the court house at Chardon, for the
county of Geauga, commencing April 17, 1818, the appointment of an
administrator on the estate of "Hiram Fowler, late deceased, of the
township of Newbury, in said county," and closed the book with a clap.
"Thus this record of absolute verity declares that Hiram Fowler had
died before April, 1818, and the plaintiff and defendant both prove
that he was alive, after Cole came into this State. Beyond the
possibility of doubt then, Cole came to the possession of this land in
1817, and his title is perfect in law, equity and morality."
When he closed this part of his case, a murmur almost of open applause
ran through the densely packed house. Here he rested the argument.
In a rapid _resume_ of the case, he seemed to have stumbled upon the
two little grass-grown graves of Cole's children, up under the old
maples. He paused, hesitated, faltered, and stopped, tears came to his
eyes, and his lips quivered. No art could have produced this effect,
and a sob broke from many in the court room. Suddenly resuming, he
finished his grouping in a saddened voice, and paused for a moment,
sending his eager glance through the court room, till it finally
rested on the face of Sam Ward. Looking at him, in half a dozen
sentences, he pilloried him for the scorn and derision of the jury;
and then turning to them, in a voice of wonderful sweetness, half sad
and regretful, he committed the case to them, and sat down.
A great hum like that of swarming bees, ran through the court house,
and men who had looked often into each other's eyes, looked again,
with a joyous sense of relief.
During some parts of his speech, which occupied an hour and a half,
men at times leaned from all parts of the room towards him, open-eyed
and open-mouthed. At others they swayed gently to and fro, like tree
tops in a breeze; and when he sat down, the oldest at the bar--the
President on the bench--felt that it was among the best speeches they
had ever heard, if not the best. The youthfulness of the orator of
course enhanced its effect. It had some faults of redundancy, both of
words and imagery, but its tone and manner were admirable. At times
his delivery was very rapid and vehement, but his voice, always rich
and full, never broke, or seemed strained; while in the moments
of excitement, every nerve and fibre of his form quivered with the
intensity of his emotion. His form was lithe and elastic, and admitted
of easy, rapid and forcible action, which was never more than was
allowable to one of his passionate temperament.
When he closed, almost everybody supposed the case was ended. Wade
arose with a radiant face, and said the defense rested the argument on
that which had just been delivered.
Kelly was taken by surprise again, both by the quality and force of
Bart's speech, and the submission of the case. The first carried him
off his feet, and he hoped to recover during the delivery of another
on the same side. He was a good chancery and real estate lawyer, but
he was not the man to reply to Barton's argument. He followed him,
however--that is, he spoke after him, and on the other side, for a
half hour, and submitted the case.
The Court gave the case to the jury on the law, as the defense claimed
it. Indeed there was no dispute about the law. He explained fully and
clearly the case, which arose on the defense; and saying, in a very
graceful and gracious way, that the merits of the case had been
presented with a force and beauty rarely equalled, and which might
tend to aid the jury in coming to their conclusion, he submitted it to
them, and took a recess for dinner.
At the recess, the lawyers crowded about Bart to congratulate him for
his defense, among whom Kelly was the foremost. Judge Markham came
up, and with moisture in his eyes, took him by both hands and drew him
away to Judge Humphrey, who complimented him in the highest terms, and
insisted upon his dining with him, which invitation Bart accepted. The
Judge was as much taken with his modest, quiet, gentlemanly manners,
and quick, happy wit, as with his splendid speech in the court room.
The fact was, his exertions had fully awakened his intellectual
forces, and they were all in the field, armed and with blades drawn.
He could not eat, and never drank, save water or milk; and now between
the two Judges, and surrounded by lawyers, with a glass of milk and a
plate of honey, petted and lionized for the moment, he gave himself
up to sparkling and brilliant answers to the numerous questions and
remarks addressed to him, and showed that, whatever draft had been
made upon him, he had plenty of resources in reserve.
Upon a return to the court house, at half past one, the jury, who had
made up and sealed their verdict, were called; it was opened and
read, and as anticipated, was for the defendant. This announcement was
received with scarcely suppressed applause. The verdict was recorded
by the clerk, and in due time followed by the judgment of the Court,
and so ended Fisk _vs_. Cole. Cole went out of the court room, with
one exception, the most observed man in the crowd.
Very naturally Barton and his last performance was the common theme
of conversation in the region round about for many days. All over
Newbury, as witnesses and other spectators returned, the whole thing
was talked over, with such various eulogies as suited the exaggerated
estimate his various admirers put upon his merits.
"What do you say now?" said Uncle Jonah to Uncle Josh, as the two had
just listened to an account of the trial, in Parker's bar room.
"It does beat hell amazingly!" answered that accomplished rhetorician.
"What did I tell you?" said Jo, at Jugville, to Uncle Cal, and that
set.
"Oh, I was there," said Uncle Cal. "I always said, ever since the
trial here, that he had the stuff in him. But he went beyond anything
I ever hearn," and Uncle Cal relapsed into admiring silence.