In his Autobiography Lew Wallace says very little about his law practice. He humbly dismissed it as an “an experimental period of my life.” He enjoyed a couple “triumphs,” made a few mistakes that were “not admirable,” and accomplished one or two things that were “smart,” but mostly, he says, I pigeon-hole those years to my “defeat.” Yet he did include a brief account of a few events during those years that he considered noteworthy.
Lew famously failed his first effort at passing the bar exam in the mid-1840s. After his return from the Mexican War, he took the exam again and passed. He first established a law office with his brother, William, in Indianapolis but that partnership was very short lived, and Lew soon moved his practice to Covington.
In Lew’s early years of practicing law, the profession was still rough and tumble and included fist fighting as a way to solve legal disputes, something Wallace would witness again later in his career with guns in the Lincoln County wars in the New Mexico Territory. However, Lew changed with the times and as the practice of law became more professional in the 1850s, he developed a system that involved the use of a stenographic system for accurate record keeping during active court cases.
Fist-fighting was one of the old pioneer ways of justice. As noted in History of Montgomery County published by A.S. Bowen in 1913, “… fighting at Crawfordsville was frequent. That was the way many pioneer citizens settled questions instead of going to law.” Farmers settled legal land disputes in “the alley to the north of the courthouse on Saturdays at 3:00 pm.” Witnesses, including the local constable, watched until one fighter would say “enough” and admit defeat. It was considered honorable fair play, faster, cheaper, and generally more efficient than courtroom proceedings full of language no one understood.
When Wallace founded his law practice in Covington in 1849, he had no clients, but he had a plan. He reasoned that the “people of Fountain County were the original settlers, primitive in habits . . . instead of taking quarrels to court, they settled them on the spot, resorting to their fists” Lawyers might be dishonest scoundrels, greedy liars, even thieves, but “the one thing their respectability could not survive was a reputation for cowardice.”
Wallace needed a frontier-style respectable “reputation” in town, so he concocted a scheme with the local sheriff, a fighting man himself, to get into a fist fight with a delegate at the constitutional convention in Covington in 1850. The scheme worked. Wallace got into a fist fight in public over political issues, was charged with assault & battery, screamed “guilty as charged” to the crowd, and fined $5 by the sheriff. “And from that day I had business. Soon the lawyer with the best docket in the county offered me a partnership.” In frontier times, fist-fighting meant bravery and a fistful of dollars.
As the law profession became more sophisticated, Wallace became aware that one of the biggest challenges for prosecutors in criminal trials was the memory of witnesses. Indiana Offices of Prosecution seemed to have never systematically addressed the problem adequately, a holdover from frontier mentality when people just gave their word without writing anything down. Without a scientific system of record keeping, witnesses, many of whom were illiterate and poor of speech, could easily change their stories, forget what they said last time, or complain that the courts misheard and misunderstood their testimonies.
This “memory problem” often gave Defense Attorneys an unfair advantage, and Wallace, who had been elected Prosecuting Attorney in Covington, figured that many a guilty criminal got off free because of poorly kept witness testimonials. Besides that, written testimonies could be carefully studied by the Prosecution to find contradictions or other slips that could further the prosecution’s case. The “remedy,” Wallace wrote, “consisted in carefully entering in a journal the testimony as given, reading it to the witness in the presence of the jury, and then requiring him to affix his signature to the statement.” In the next court session, “I would re-read the signed transcript to the witness, so any change in testimonial story would be perjury.” The “work was heavy,” but “profitable” to the advancement of the legal system and to the Prosecuting Attorney’s Office. This is probably one of those “smart” things Wallace lists in his autobiography helping him secure favorable rulings in court and a solid reputation. While he lightly dismissed his law career, Lew Wallace was actually a capable, resourceful and effective attorney.
Sources: Paper by Dr. Jamey Norton Montgomery County Ouiatenon History Club, Nov. 17, 2015
Lew Wallace: An Autobiography, Lew Wallace, Harper & Brothers, 1906.
