Life of Henry Clay/02 The Kentucky Lawyer

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Life of Henry Clay by Carl Schurz
Chapter II. The Kentucky Lawyer.

CHAPTER II.


THE KENTUCKY LAWYER.


At the time when Henry Clay left Richmond to seek his fortune in Kentucky, the valley of the Ohio was the "Far West" of the country, attracting two distinct classes of adventurous and enterprising spirits. Only nine years before, in 1788, the Ohio River had floated down the flat-boats carrying the pioneers who founded the first settlements on the northern bank at Marietta and on the present site of Cincinnati; but forthwith a steady stream had poured in, which in twelve years had swelled the population of the territory destined to become the State of Ohio to 45,000 souls. They came mainly from New England, New York, and Pennsylvania. Emigrants from the Slave States, too, in considerable number, sought new homes in the southern portion of the Northwest Territory, but they formed only a minority. The settlement of Kentucky was of an older date, and its population of a different character. Daniel Boone entered the "dark and bloody ground" in 1769, seven years before the colonies declared themselves independent. Other hardy and intrepid spirits soon followed him, to dispute the possession of the land with the Indians. They were hunters and pioneer farmers, not intent upon founding large industrial communities, but fond of the wild, adventurous, lonesome, unrestrained life of the frontiersman. Ten years after Daniel Boone's first settlement, Kentucky was said to contain less than two hundred white inhabitants. But then immigration began to flow in rapidly, so that in 1790, when the first federal census was taken, Kentucky had a population of 73,600, — of whom 61,000 were white. About one half of the whites and three fourths of the slaves had come from Virginia, the rest mostly from North Carolina and Maryland, with a sprinkling of Pennsylvanians. At the period when Henry Clay arrived in Kentucky, in 1797, the population exceeded 180,000, about one fifth of whom were slaves, — the later immigrants having come from the same quarter as the earlier.

The original stock consisted of the hardiest race of backwoodsmen. The forests of Kentucky were literally wrested from the Indians by constant fighting. The question whether the aborigines had any right to the soil seems to have been utterly foreign to the pioneer's mind. He wanted the land, and to him it was a matter of course that the Indian must leave it. The first settlements planted in the virgin forest were fortified with stockades and block-houses, which the inmates, not seldom for months at a time, could not leave without danger of falling into an Indian ambush and being scalped. No part of the country has therefore more stories and traditions of perilous adventures, bloody fights, and hairbreadth escapes. For a generation or more the hunting-shirt, leggins, and moccasins of deerskin more or less gaudily ornamented, and the long rifle, powder-horn, and hunting-knife formed the regular "outfit" of a very large proportion of the male Kentuckians. We are told of some of the old pioneers who, many years after populous towns had grown up on the sites of the old stockades, still continued the habit of walking about in their hunter's garb, with rifle and powder-horn, although the deer had become scarce and the Indian had long ago disappeared from the neighborhood. They were loath to make up their minds to the fact that the old wild life was over. Thus the reminiscences and the characteristic spirit and habits left behind by that wild life were still fresh among the people of Kentucky at the period of which we speak. They were an uncommonly sturdy race of men, most of them fully as fond of hunting, and perhaps also of fighting, as of farming; brave and generous, rough and reckless, hospitable and much given to boisterous carousals, full of a fierce love of independence, and of a keen taste for the confused and turbulent contests of frontier politics. Slavery exercised its peculiar despotic influence there as elsewhere, although the number of slaves in Kentucky was comparatively small. But among freemen a strongly democratic spirit prevailed. There was as yet little of that relation of superior and inferior between the large planter and the small tenant or farmer which had existed, and was still to some extent existing, in Virginia. As to the white population, society started on the plane of practical equality.

Where the city of Lexington now stands, the first block-house was built in April, 1775, by Robert Patterson, "an early and meritorious adventurer, much engaged in the defense of the country." A settlement soon formed under its protection, which was called Lexington, in honor of the Revolutionary battle then just fought in Massachusetts. The first settlers had to maintain themselves in many an Indian fight on that "finest garden spot in all Kentucky," as the Blue Grass region was justly called. In an early day it attracted "some people of culture" from Virginia, North Carolina, and Pennsylvania. In 1780 the first school was built in the fort, and the same year the Virginia legislature — for Kentucky was at that time still a part of Virginia — chartered the Transylvania Seminary to be established there. In 1787 Mr. Isaac Wilson, of the Philadelphia College, opened the "Lexington Grammar School," for the teaching of Latin, Greek, "and the different branches of science." The same year saw the organization of a "society for promoting useful knowledge," and the establishment of the first newspaper. A year later, in 1788, the ambition of social refinement wanted and got a dancing-school, and also the Transylvania Seminary was fairly ready to receive students: "Tuition five pounds a year, one half in cash, the other in property; boarding nine pounds a year, in property, pork, corn, tobacco, etc." In ten years more the seminary, having absorbed the Kentucky Academy established by the Presbyterians, expanded into the "Transylvania University," with first an academical department, and the following year adding one of medicine and another of law. Thus Lexington, although still a small town, became what was then called "the literary and intellectual centre west of the Alleghanies," and a point of great attraction to people of means and of social wants and pretensions. It would, however, be a mistake to suppose that it was a quiet and sedate college town like those of New England. Many years later, in 1814, a young Massachusetts Yankee, Amos Kendall, who had drifted to Lexington in pursuit of profitable employment, and was then a private teacher in Henry Clay's family, wrote in his diary: "I have, I think, learned the way to be popular in Kentucky, but do not, as yet, put it in practice. Drink whiskey and talk loud, with the fullest confidence, and you will hardly fail of being called a clever fellow." This was not the only "way to be popular," but was certainly one of the ways. When the Lexington of 1797, the year of Clay's arrival there, is spoken of as a "literary and intellectual centre," the meaning is that it was an outpost of civilization still surrounded, and to a great extent permeated, by the spirit of border life. The hunter in his fringed buckskin suit, with long rifle and powder-horn, was still a familiar figure on the streets of the town. The boisterous hilarity of the bar-room and the excitement of the card table accorded with the prevailing taste better than a lecture on ancient history; and a racing horse was to a large majority of Lexingtonians an object of far greater interest than a professor of Greek. But compared with other Western towns of the time, Lexington did possess an uncommon proportion of educated people; and there were circles wherein the social life displayed, together with the freedom of tone characteristic of a new country, a liberal dash of culture.

This was the place where Henry Clay cast anchor in 1797. The society he found there was congenial to him, and he was congenial to it. A young man of uncommon brightness of intellect, of fascinating address, without effort making the little he knew pass for much more, of high spirits, warm sympathies, a cheery nature, and sociable tastes, he easily became a favorite with the educated as a person of striking ability, and with the many as a good companion, who, notwithstanding a certain distinguished air, enjoyed himself as they did. It was again as a speaker that he first made his mark. Shortly after his arrival at Lexington, before he had begun to practice law, he joined a debating club, in several meetings of which he participated only as a silent listener. One evening, when, after a long discussion, the vote upon the question before the society was about to be taken, he whispered to a friend, loudly enough to be overheard, that to him the debate did not seem to have exhausted the subject. Somebody remarked that Mr. Clay desired to speak, and he was called upon. Finding himself unexpectedly confronting the audience, he was struck with embarrassment, and, as he had done frequently in imaginary appeals in court, he began: "Gentlemen of the jury!" A titter running through the audience increased his embarrassment, and the awkward words came out once more. But then he gathered himself up; his nerves became steady, and he poured out a flow of reasoning so lucid, and at the same time so impassioned, that his hearers were overcome with astonishment. Some of his friends who had been present said, in later years, that they had never heard him make a better speech. This was, no doubt, an exaggeration of the first impression, but at any rate that speech stamped him at once as a remarkable man in the community, and laid open before him the road to success.

He had not come to Lexington with extravagant expectations. As an old man, looking back upon those days, he said: "I remember how comfortable I thought I should be if I could make one hundred pounds a year, Virginia money, and with what delight I received the first fifteen shillings fee." He approached with a certain awe the competition with what he called "a bar uncommonly distinguished by eminent members." But he did not find it difficult to make his way among them. His practice was, indeed, at first mostly in criminal cases, and many are the stories told of the marvelous effects produced by his eloquence upon the simple-minded Kentucky jurymen, and of the culprits saved by him from a well-merited fate. In one of those cases, — that of a Mrs. Phelps, a respectable farmer's wife, who in a fit of angry passion had killed her sister-in-law with a musket, — he used "temporary delirium" as a ground of defense, and thus became, if not the inventor, at least one of the earliest advocates, of that theory of emotional insanity which has served so much to confuse people's notions about the responsibility of criminals. But in the case of Mrs. Phelps the jury, with characteristic confusion of judgment, found that the accused was just insane enough not to be hung, but not insane enough to be let off without a term in jail.

There is one very curious exploit on record, exhibiting in a strong light Clay's remarkable power, not only as a speaker, but as an actor. A man named Willis was tried for a murder of peculiar atrocity. In the very teeth of the evidence, which seemed to be absolutely conclusive, Clay, defending him, succeeded in dividing the jury as to the nature of the crime committed. The jurors having been unable to agree, the public prosecutor moved for a new trial, which motion Clay did not oppose. But when, at the new trial, his turn came to address the jury, he argued that, whatever opinion the jury might form from the testimony as to the guilt of the accused, they could not now convict him, as he had already been once tried, and it was the law of the land that no man should be put twice in jeopardy of his life for the same offense. The court, having, of course, never heard that doctrine so applied, at once peremptorily forbade Clay to go on with such a line of argument. Whereupon the young attorney solemnly arose, and with an air of indignant astonishment declared that, if the court would not permit him to defend, in such manner as his duty commanded him to adopt, a man in the awful presence of death, he found himself forced to abandon the case. Then he gathered up his papers, bowed grandly, and stalked out of the room. The bench, whom Clay had impressed with the belief that he was profoundly convinced of being right in the position he had taken, and upon whom he had in such solemn tones thrown the responsibility for denying his rights to a man on trial for his life, was startled and confused. A messenger was dispatched to invite Clay in the name of the court to return and continue his argument. Clay graciously came back, and found it easy work to persuade the jury that the result of the first trial was equivalent to an acquittal, and that the prisoner, as under the law he could not be put in peril of life twice for the same offense, was clearly entitled to his discharge. The jury readily agreed upon a verdict of "not guilty."

It is said that no murderer defended by Henry Clay ever was sentenced to death, and very early in his professional career he acquired the reputation of being able to insure the life of any criminal intrusted to his care, whatever the degree of guilt. That his success in saving murderers from the gallows did not benefit the tone and character of Kentucky society, Clay himself seemed to feel. "Ah, Willis, poor fellow," he said once to the man whose acquittal he had obtained by so audacious a dramatic coup, "I fear I have saved too many like you, who ought to be hanged."

But he was equally successful in the opposite direction when acting as public prosecutor. He had frequently been asked to accept the office of attorney for the commonwealth, but had always declined. At last he was prevailed upon to take it temporarily, until he could obtain the appointment of a friend, who, he thought, ought to have the place. The first criminal case falling into his hands was one of peculiar interest. A slave, who was highly valued by his master on account of his intelligence, industry, and self-respect, was, in the absence of the owner, treated very unjustly and harshly by an overseer, a white man. Once the slave, defending himself against the blows aimed at him, seized an axe and killed his assailant. Clay, as public prosecutor, argued that, had the deed been done by a free man, considering that it was done in self-defense, it would have been justifiable homicide, or, at worst, manslaughter. But having been done by a slave, who was in duty bound to submit to chastisement, it was murder, and must be punished as such. It was so punished. The slave was hung; but his self-contained and heroic conduct in the presence of death extorted admiration from all who witnessed it; and this occurrence made so deep and painful an impression upon Clay himself that he resigned his place as soon as possible, and never failed to express his sorrow at the part he had played in this case whenever it was mentioned.

It was not long, however, that he remained confined to criminal cases. Soon he distinguished himself by the management of civil suits also, especially suits growing out of the peculiar land laws of Virginia and Kentucky. In this way he rapidly acquired a lucrative practice and a prominent place at the bar of his state. That with all his brilliant abilities he never worked his way into the front rank of the great lawyers of the country was due to his characteristic failing. He studied only for the occasion, as far as his immediate need went. His studies were never wide and profound. His time was too much occupied by other things, — not only by his political activity, which gradually grew more and more exacting, but also by pleasure. He was fond of company, and in that period of his life not always careful in selecting his comrades; a passion for cards grew upon him, so much so, indeed, that he never completely succeeded in overcoming it; and these tastes robbed him of the hours and of the temper of mind without which the calm gathering of thought required for the mastery of a science is not possible. Moreover, it is not improbable that his remarkable gift of speaking, which enabled him to make little tell for much, and to outshine men of vastly greater learning, deceived him as to the necessity for laborious study. The value of this faculty he appreciated well. He knew that oratory is an art, and in this art he trained himself with judgment and perseverance. For many years, as a young man, he made it a rule to read, if possible every day, in some historical or scientific book, and then to repeat what he had read in free, off-hand speech, "sometimes in a cornfield, at others in the forest, and not unfrequently in a distant barn with the horse and ox for auditors." Thus he cultivated that facility and affluence of phrase, that resonance of language, as well as that freedom of gesture, which, aided by a voice of rare power and musical beauty, gave his oratory, even to the days of declining old age, so peculiar a charm.

Only a year and a half after his arrival at Lexington, in April, 1799, he had achieved a position sufficiently respected and secure to ask for and to obtain the hand of Lucretia Hart, the daughter of a man of high character and prominent standing in the state. She was not a brilliant, but a very estimable woman, and a most devoted wife to him. She became the mother of eleven children. His prosperity increased rapidly; so that soon he was able to purchase Ashland, an estate of some six hundred acres, near Lexington, which afterward became famous as Henry Clay's home.

Together with the accumulation of worldly goods he laid up a valuable stock of popularity. Indeed, few men ever possessed in greater abundance and completeness those qualities which attract popular regard and affection. A tall stature; not a handsome face, but a pleasing, winning expression; a voice of which some of his contemporaries say that it was the finest musical instrument they ever heard; an eloquence always melodious and in turn majestic, fierce, playful, insinuating, irresistibly appealing to all the feelings of human nature, aided by a gesticulation at the same time natural, vivid, large, and powerful; a certain magnificent grandeur of bearing in public action, and an easy familiarity, a never failing natural courtesy in private, which, even in his intercourse with the lowliest, had nothing of haughty condescension in it; a noble generous heart making him always ready to volunteer his professional services to poor widows and orphans who needed aid, to slaves whom he thought entitled to their freedom, to free negroes who were in danger of being illegally returned to bondage, and to persons who were persecuted by the powerful and lawless, in serving whom he sometimes endangered his own safety; a cheery sympathetic nature, withal, of exuberant vitality, gay, spirited, always ready to enjoy, and always glad to see others enjoy themselves, — his very faults being those of what was considered good fellowship in his Kentuckian surroundings; a superior person, appearing, indeed, immensely superior at times, but making his neighbors feel that he was one of them, — such a man was born to be popular. It has frequently been said that later in life he cultivated his popularity by clever acting, and that his universal courtesy became somewhat artificial. If so, then he acted his own character as it originally was. It is an important fact that his popularity at home, among his neighbors, indeed in the whole state, constantly grew stronger as he grew older, and that the people of Kentucky clung to him with unbounded affection.