LINCOLN THE LAWYER FREDERICK TREVOR HILL LINCOLN ROOM UNIVERSITY OF ILLINOIS LIBRARY from CARL SANDBURGS LIBRARY LINCOLN THE LAWYER From an ambrotype, taken in i860, owned by Major William H. Lambert ;c^r~fr*/ LINCOLN THE LAWYER BY FREDERICK TREVOR HILL AUTHOR OF " THE CASE AND EXCEPTIONS," "the ACCOMPLICE," ETC. i fewJwwyAw ww NEW YORK THE CENTURY CO. 1912 Copyright, 1905, 1906, by The Century Co. Published, October, 1906 TO THE LADY <*4 o "I lay great stress on Lincoln s career as a law- yer — much more than his biographers do; . . . and I am, sure his training and experience in the courts had much to do with the development of those forces of intellect and character which he soon displayed on a broader arena." The Hon. Joseph It. Choate on Lincoln, at Edinburgh, Scotland, November 13, 1900 "The best training he [Li7icol?i~\ had for the Presidency, after all, was his twenty-three years' arduous experience as a lawyer traveling the cir- cuits of the courts of his district and State. Here he met in forensic conflict, and frequently de- feated, some of the most powerful legal minds of the West. In the higher courts he won still greater distinction in the important cases coming to his charge" President McKinley at the Marquette Club, February 12, 1896, CONTENTS CHAPTER PAGE Foreword xv i Lincoln's Mythical Birthiught to the Law 3 ii The Real Source of Lincoln's Profes- sional Aspirations 11 hi The Primitive Bench and Bar of Indiana 19 iv Legal Apprenticeship 27 v Lincoln's First Argument and His Early Attitude toward the Law .... 35 vi Lincoln the Law Student 46 vn Admission to the Bar — The Primitive Bench and Bar of Illinois .... 56 vm Lincoln's First Partnership 70 ix His Early Cases and Competitors ... 82 x Lincoln the Managing Clerk .... 96 xi Early Success in the Courts .... 104 xn A Notable Partnership 112 xiii Judge Logan and Lincoln 124 ix CONTENTS CHAPTER PAGE xiv Lincoln the Head of a Law Firm . . . 134 xv Lincoln the Lawyer in Congress . . .148 xvi Life on the Illinois Circuit 161 xvn Judge Davis and Lincoln 178 xvih Leader of the Bar 196 xix The Jury Lawyer 208 xx The Cross-Examiner 221 xxi Legal Ethics 235 xxn Legal Refutation 245 xxin Law in the Debate 263 xxiv As Candidate 280 xxv As President 293 Appendices — i Illinois Supreme Court Memorial 313 ii Lincoln's Case against the Illinois Central R. R 316 in Lincoln's Cases in the Illinois Court of Last Resort .... 320 Index 327 K LIST OF ILLUSTRATIONS Abraham Lincoln in 1860, with Autograph, Frontispiece PAGE Books from Abraham Lincoln's Library .... 15 Autograph of Bowling Green 30 Judge Lawrence Weldon 37 A Legal Opinion from Lincoln ©n a Question of Surveying 53 Judge John Reynolds 63 Hon. John T. Stuart 71 Office of Stuart & Lincoln as it is To-day ... 74 Letter Written by Lincoln Concerning Preparation for the Bar 76 "Praecipe," in Lincoln's Handwriting, in His First Case, Hawthorne v. Woolridge 83 Lincoln's Jocose Caption over an Entry of Stuart & Lincoln's Private Docket 86 A Legal Document in Lincoln's Handwriting, Signed Stuart & Lincoln 89 Hon. James A. McDougall, Hon. O. H. Browning, Hon. Lyman Trumbull, and Maj.-Gen. John A. McClernand 91 xi LIST OF ILLUSTRATIONS PAGK A "Dictionary for Primary Schools" with Lincoln's Autograph 107 Stephen T. Logan 115 Building in Springfield, in which Logan & Lincoln's Office was Located 127 Beginning and Conclusion of a Legal Document in Lincoln's Handwriting, Signed Logan & Lincoln 130 Old Court-house at Lincoln, the County Seat of Logan County 136 William H. Herndon 139 Legal Document in Lincoln's Handwriting, Signed with the Firm Name and by Lincoln Personally 145 Grant Goodrich 160 Original Offices of Lincoln & Herndon (Exterior) 163 Hon. Samuel H. Treat 165 Map of Illinois, Showing Circuit of Lincoln's Law Practice 169 Old Court-house at Mctamora, Woodford County 171 Original Offices of Lincoln & Herndon (Interior) 173 Hon. David Davis . .179 Court-room, Tazewell County 187 Old Court-house at Pekin, Tazewell County . . .189 Facsimile of a Judgment Written by Lincoln as Acting Judge 191 Portrait of Lincoln 203 Leonard Swett 213 Hon. James T. Hoblitt and Hon. Robert R. Hitt 223 xii LIST OF ILLUSTRATIONS PAGE Facsimile of a Part of Lincoln's Memorandum Brief in the Case of Lewis v. Lewis in the United States Supreme Court 247 Lincoln's Pass as Counsel for the Illinois Central R. R 249 Facsimile of First Page of Lincoln's Opinion on a Question Involving the Construction of the Charter of the Illinois Central R. R 251 Facsimile of Part of Lincoln's Trial Brief in His Case against the Illinois Central R. R. . . . 254 Memorandum Brief in Lincoln's Handwriting, Op- posing an Attempt to Break a Will 256 Bridge over the Mississippi at Davenport. — Old Pier of First Mississippi Bridge at Davenport, . . 260 Judge Stephen A. Douglas 265 Chair Used by Lincoln in His Law Office . . . 281 Maj .-Gen. John M. Palmer 283 N. B. Judd 287 Inkstand Used by Lincoln in His Law Office . . 289 Bookcase and Table Used by Lincoln in His Law Office 290 First Draft, in Lincoln's Handwriting, of a Bill for the Emancipation of Slaves in Delaware . . . 303 Second Draft, in Lincoln's Handwriting, of a Bill for Compensated Emancipation of Slaves in Delaware 306 Lincoln's Comments on the Proposed Measure of Compensated Emancipation in Delaware . . . 308 • • • Xlll FOREWORD The testimony concerning Abraham Lincoln is voluminous — the exhibits are almost numberless ; but one important point in the vast record has been slighted by the mighty array of able and eminent advocates who have presented it to the world, for no one has heretofore attempted a summing-up of the great President's legal career. The explanation of this neglect is simple. Lin- coln's achievements as a statesman are so trans- cendently important that they have demanded and justly received exhaustive and well-nigh ex- clusive consideration. Compared with his historic guidance of the nation, his experience at the bar has appealed to his biographers as being merely episodic. But if it be true that the statesman's legal training qualified him for his great task; if it be probable that without such training he could not have accomplished his stupendous results ; if it be xv FOREWORD possible that he would never have been called to his high station unless he had been admitted to the bar— then surely the story of his professional life deserves more than a passing comment, a paragraph, or even a chapter. It is certainly strange that the literature in- spired by Lincoln's record, though vast in quan- titjr and rich in quality, should include no special study of his legal aptitudes. One autobiograph- ical volume of life on the Illinois circuit is coupled with his name; but most of the notable histories dispose of his twenty-three years' practice as an attorney in less than two chapters, and the minor works bury it altogether under a mass of un- authentic anecdote and trivial reminiscence. But because the influence of Lincoln's legal training can be plainly traced in many of his most momentous actions, because there is evidence that this training proved invaluable to him at critical moments, because he lived true to the noblest ideals of his profession, and was, in the highest meaning of the words, a great lawyer, the treat- ment which the historians have accorded his pro- FOREWORD fessional career seems inadequate to the writer, and it is to justify this conclusion that these pages are submitted. The writer gratefully acknowledges the assist- ance of all those historians and biographers whose works contain any authentic information concern- ing Lincoln's career at the bar; he also desires to record his appreciation of the courtesy of the court clerks and other officials who kindly facili- tated his work in the examination of the old records of the Illinois circuit courts, and to ex- press his thanks to the Hon. Robert Lincoln, Major William H. Lambert, the Hon. Robert R. Hitt, the Hon. Adlai E. Stevenson, the Hon. James Haines, the Hon. James Ewing, General Alfred Orendorff, Mr. Isaac N. Phillips, the Hon. James Hoblit, and other members of the Illinois Bar, and to Mr. E. M. Prince, Mr. George P. Davis, Mrs. Jessie Palmer Weber, and other officers of the Illinois State Historical Society, and the McLean County Historical So- ciety, for their generous and efficient aid. xvii FOREWORD Especially is he indebted to the late Judge Lawrence Weldon, of the United States Court of Claims (the last surviving member of the bar who traveled the circuit with Lincoln), who shortly before his death placed at the writer's dis- posal his recollections of Mr. Lincoln as a lawyer and his reminiscences of the days when he and the great President practised together on the old Eighth Illinois Circuit. Since the first edition of this volume was issued in 1906 a more exhaustive examination of Mr. Lincoln's record at the Bar has disclosed ad- ditional facts and figures of importance which have been incorporated in the foot-notes and ap- pendices of the present edition. For his assist- ance in procuring part of this additional material, the writer is indebted to the courtesy of Charles W. Moores, Esq., of the Indiana Bar. March, 1912. Frederick Trevor Hill. xvm LINCOLN THE LAWYER LINCOLN THE LAWYER Lincoln's mythical birthright to the law ONE of his eulogists declares that "Lincoln is not a type. He stands alone — no ancestors — no fellows — no successors." The facts fully justify the tribute. Assuredly the great Emancipator was a man apart, without equals or followers, and he him- self waived all claims to ancestry. "I don't know who my grandfather was," he remarked; "and am much more concerned to know what his grandson will be." But though the first American knew little about his family history and cared less, his biog- raphers have devoted themselves to the subject with zeal and enthusiasm, and, thanks to them, we now know who his progenitors were, even to the 3 LINCOLN THE LAWYER sixth or seventh generation, and are fully in- formed of their domiciles and wanderings and the various stations of life to which it pleased God to call them. The result of all this exhaustive and laborious research is mainly negative; but there are those who find signs in the record, and among the strange conclusions which have been derived from its perusal, perhaps the strangest is that Lincoln inherited his legal talents and aptitudes. Cer- tainly nothing could be more unwarranted than this; for little as there is in his origin to account for him as a man, there is even less to explain him as a lawyer. Unless we accept the well-supported but not established contention that the great President was descended from the Lincolns of Hingham, Massachusetts, there is absolutely no precedent in the family for his choice of a profession; and those who struggle to prove that he came of a race of jurists and statesmen virtually defeat themselves when they take refuge in the genea- logical records of New England. Samuel Lincoln, the founder of the Massa- chusetts house, had four sons, and the descend- ants of some of those sons undoubtedly attained 4 A MYTHICAL BIRTHRIGHT high distinction at the bar. Indeed, one of them, the Attorney-General of Jefferson's cabinet, de- clined a nomination to the Supreme Court of the United States, and at least two others were law- yers of recognized ability. But the trouble with these facts is that the distinguished Attorney- General and the other legal luminaries belonged to branches of the Massachusetts family with which Abraham Lincoln was only remotely, if at all, connected ; and the shadowy claim that he had any birthright to the law utterly disappears when the record is more closely examined. The original Lincoln of Hingham was an Englishman who came to America apprenticed as a weaver. His fourth son, Mordecai, from whom the President is supposed to have descended, was a blacksmith. 1 His eldest son, another Mordecai, was a miller and blacksmith. His eld- est son, John,— the "Virginia John" of the biog- raphies, — was a farmer; and his third son, Abra- ham Lincoln's great-grandfather, was likewise a tiller of the soil. This leaves only his grandfather and father to be accounted for, and the former 1 The genealogists are careful to explain that a blacksmith was not really a blacksmith in those early days, but rather an "iron- worker." ("New England Historic Genealogical Register," Vol. XLI, p. 153 n.) This nice distinction does not affect the question at issue, however comforting it may be for other purposes. 5 LINCOLN THE LAWYER was a farmer, and the latter a carpenter. A weaver, two blacksmiths, three farmers, and a carpenter — those are the callings represented by the President's forefathers for seven generations. Small wonder, then, that the believers in heredity have recourse to the collateral branch of the dis- tantly related Massachusetts family for prece- dents entitling the son of a backwoods carpenter to enter the honorable profession of the law. This is virtually all that is known of Lincoln's ante- cedents upon which to predicate the theory of his natural talents for the law. It is more than possible that Lincoln inherited many sterling qualities of mind and character from the worthy mechanics and farmers from whom he was descended, but there is very little on the face of the record to encourage any definite claims on their behalf for the shaping of his career. Certainly the paternal influence was not inspiring. His father was an ignorant man, amiable enough, but colorlessly negative, without strength of character, and with no ambition worthy of the name. His only effort to influence his son's future was a half-hearted attempt to teach him carpentry ; but he soon abandoned such instruction and allowed the boy to occupy him 6 A MYTHICAL BIRTHRIGHT self with odd jobs about the farm when he could not hire him out to neighbors in need of an extra hand. Nancy Lincoln, the lad's mother, was bet- ter educated than most of the pioneer women. She taught her husband to read and write and sent her son to his first school ; but she died when he was only about nine years old, and it was his step-mother who encouraged his ambition for education. All the misinformation concerning Lincoln's professional career is not, however, derived from the experts in heredity. A great deal of non- sense has been written about his early years, and a grave effort has been made to prove him a youth of exceptional promise, a brilliant scholar, and a prodigy of application and industry. As a matter of fact, he did not begin to develop mentally until he was about eighteen,— even in the prime of life his intellectual processes were not quick, — and there is nothing to indicate that he was a particularly industrious boy. Five pedagogues— two in his birthplace, Kentucky, and three in Indiana— share the honor of con- tributing to his elementary education; but had their pupil been never so gifted, they could scarcely have discovered it, for his schooling 7 LINCOLN THE LAWYER amounted to less than a year in all— about as long as it must have taken some of the minor biog- raphers to collect and record the pointless remi- niscences of his alleged schoolmates. He lived the healthy, outdoor life of the average country lad of the settler days, exhibit- ing no precocity or abnormal tendencies to dis- tinguish him from his fellows. He was fond of tramping about the country, not caring much for shooting or fishing, but entering into other sports and pastimes with zest and spirit, and ex- celling at games requiring strength; not in love with work for work's sake, but willing to do his share without grumbling, seeing no visions of coming greatness, and troubling himself with no ponderous thoughts concerning his career. This is the sum and substance of his childhood, and the real inspiration of his very human develop- ment has suffered at the hands of the enthusi- astic chroniclers who picture him as a child of destiny— dreamy, mysterious, and miraculously endowed. In one respect he was undoubtedly exceptional. He liked reading— an unusual trait among the pioneer settlers of the Middle West— but exag- gerated emphasis has been placed on this charac- 8 A MYTHICAL BIRTHRIGHT teristic, which was by no means unique. For in- stance, the books which comprised his earliest reading are admiringly called to our attention, with comments which suggest that they fore- shadow his career. The list includes "iEsop's Fables," "Robinson Crusoe," "Pilgrim's Pro- gress," a history of the United States, and Weems's "Life of Washington." There is, of course, nothing remarkable about this catalogue. Almost every item in it formed part of the read- ing of every intelligent American boy of the period, whether he lived in the backwoods or in the city. Indeed, the only really notable fact about the much-quoted list is that Lincoln worked three days at twenty-five cents a day to compen- sate for an accidental injury to the "Life of Washington," which he borrowed from "Blue Nose" Crawford. There was nothing angelic about the youthful Lincoln, however. He con- sidered "Blue Nose" as mean as any other boy would have thought him under similar circum- stances, and we know that he nicknamed and otherwise ridiculed the stingy old farmer; but his dawning character is indicated by his prompt recognition of the claim and his faithful pay- ment of the damages. 9 LINCOLN THE LAWYER This is one of the few stories touching Lin- coln's youth which has any bearing on his tem- perament or his career. Most of the anecdotes of his boyhood exhibit him as a child of superhuman qualities, and many of them served to misrepre- sent other great men before he was born. One episode, founded on fact, however, is re- sponsible for a grave misunderstanding about the impulse which prompted him to follow the law. We know from his own statement that be- fore he had been many years in Gentryville, Indi- ana, he had borrowed from one source or another all the books he could lay his hands on for a cir- cuit of fifty miles, and among the generous lenders was a Mr. Turnham. This gentleman lent him a copy of the Revised Statutes of Indi- ana; and, if we are to believe the biographers, it was this volume — as dull a tome as ever lay be- tween sheepskin covers — which appealed to his boyish imagination and inspired his ambition for the profession of the law. 10 II THE REAL SOURCE OF LINCOLN'S PROFESSIONAL ASPIRATIONS HISTORICALLY, this copy of the Indiana Statutes is interesting. It is undoubtedly the first law book which Lincoln ever read; but that its musty, dry-as-dust pages could have fascinated an out-of-doors boy of seventeen, or imbued him with any intense longing for a legal career, is against all human probability. One biographer asserts that he read it with all the excitement and avidity with which an ordinary boy would read the romances of Dumas, and another caps this with the statement that his hero "read and re-read it until he had almost com- mitted its contents to memory ; and in after years, when any one cited an Indiana law, he could usually repeat the exact text and often give the numbers of the page, chapter, and paragraph." To appreciate the absurdity of such statements it is only necessary to examine the volume in 11 LINCOLN THE LAWYER question. It is dull as only statute law can be dull, about as easily memorized as the dictionary, and of no enduring authority. Only a short time after he had read this compilation 1 the legislature amended some of its provisions, annulled others, and generally revised the contents. And yet we are gravely told that "in after years, when any one cited an Indiana law, he could usually repeat the exact text and often give the numbers of the page, chapter, and paragraph" of this obsolete revision. What a useful accomplishment! That is a fair sample of the grotesque carica- turing which Lincoln has suffered at the hands of sentimentalists not too deeply familiar with human nature, to say nothing of statute lore. But those who believe in the epoch-marking influence of the volume in question are not satis- fied with the concession that it was the first law which Abraham Lincoln read. They contend that it not only inspired his choice of a profes- sion, but also imparted his first knowledge of American government; and they conjure up a diverting picture of the anointed youth reading 1 The Revised Statutes of Indiana which Lincoln received from Mr. Turnham were published in 1824. He certainly never saw them before 18£?6. They were revised in 1831, and a little later they were again amended. The original copy which he handled is in existence. 12 PROFESSIONAL ASPIRATIONS with eager eyes and glowing cheeks the wondrous words of the Declaration of Independence and the Constitution of the United States which pref- aced its pages. This conception does credit to the imagination, but it fades under the cold light of facts. Long before he borrowed Turnham's famous Statutes, Lincoln had read at least one history of the United States, to say nothing of Parson Weems's "Life of Washington." Possibly he had never read either the Constitution or the Declaration in its entirety until the Indiana re- vision came into his possession; but to claim that he obtained his first insight into American gov- ernment, at the age of seventeen, from that vol- ume, is sacrificing sense to sentiment. More- over it argues a lamentable ignorance of the wis- dom dispensed at the country stories, especially in a community where, to use a common phrase of the times, "There was a politician on every stump." Jones's store was the popular forum of Gen- tryville, and Lincoln had been a constant attend- ant at all its sessions since he entered his teens. There he had met and talked with lawyers, lis- tened to stump-speakers, tried a little oratory 13 LINCOLN THE LAWYER himself, and won considerable reputation as a ready talker among his fellow-townsmen; and there, most important of all, he had heard of the doings of the Boonville court, and had kept in intimate touch with its proceedings. Life at Gentryville, Indiana, with its dull, trivial round of hard labor at delving, grubbing, corn-shucking, rail-splitting, and the like, could not have been exhilarating. Doubtless it was a happy enough life for an easy-going, good-hu- mored, healthy, growing boy ; but he would have been stupid, indeed, if he had not availed himself of such amusements as the neighborhood af- forded, and the one great diversion and intellec- tual stimulant of the community came through the sessions of the Boonville court. Boonville was fully fifteen miles from Gentry- ville, but people often traveled farther than that to attend the civil and criminal trials at the county-seat. Every term of the court, of course, meant a market ; and the pioneers looked forward to the coming of the circuit judge, not only be- cause it promised entertainment, but also for business reasons. The court was their theater, their lecture-plat- form, their common meeting-place, their center 14 These books, from left to right, are "Religious Truth Illustrated from Science" — Hitch- cock: u Gibbon's Rome," 4 vols.; "Dictionary of Congress" — Lanman : " Paley's Works " ; " Angell on Limitations*'; "The Republican Party" — Sumner, i860; "The Illinois Convey- ancer," and "A Dictionary of Primary Schools" These books, from left to right, are "Journal of the House of Representatives of the Tenth General Assembly of Illinois," "Life of Black Hawk," "Illinois Convention Journal," " Laws of Illinois, 1-41." " Revised Statutes, Illinois, 1845," "Law Register, Livingston, 1852," "Dean's Medical Jurisprudence," and "Acts and Resolutions passed at the Thirtieth Congress of the United States, 1848" Books From Abraham Lincoln's Library PROFESSIONAL ASPIRATIONS of government, and to it they flocked for mental refreshment and recreation in a holiday spirit. Entire families would sometimes make the trip, virtually living in their wagons while the ses- sion lasted, and the proceedings supplied material for conversation and discussion long after the event. Altogether it was a great occasion, and the court-house was usually full to overflowing. It is not surprising, then, that young Lincoln cheerfully trudged to Boonville on foot and sel- dom missed a trial. There were rare exhibitions of human nature in the legal combats which he witnessed in the little log court-house, plenty of drama and excitement in the clash of the bat- tling attorneys, and a vast deal of information for any active mind. There was also grim, earnest, serious business transacted by the judge and juries— fascinating, engrossing business; and doubtless the youthful Lincoln, listening to the crude legal champions and responding to the dawning powers within him, mentally matched himself against them. Surely it must have been then that his imagination was first quickened and his ambition vitalized and focussed. Unfortunately, there are no records of the Boonville court in existence to-day, but there is 17 LINCOLN THE LAWYER evidence that he witnessed at least one hotly con- tested murder trial within its walls, and we know that the event made a profound impression on his mind. The defendant in that case was rep- resented by one Breckenridge, and the advocate made such a powerful summing-up for his client that young Lincoln, with boyish enthusiasm, sought him out after the verdict to congratulate him on the speech and its result. "I felt," he remarked to Breckenridge in the White House many years afterward, "that if I could ever make as good a speech as that, my soul would be satisfied, for it was the best I had ever heard." Even assuming for the sake of argument, that this episode occurred after he had perused the Revised Statutes of Indiana, it ought not to be difficult to decide which exerted the more powerful influence on his future career— the flaming eloquence of the backwoods orator or the lifeless pages of statute law. 18 Ill THE PRIMITIVE BENCH AND BAR OF INDIANA OF course the Boonville court-house bore no resemblance to anything even remotely suggesting the domed dignity of a modern hall of justice; but, though no picture of the building has been preserved, the loss is not important, for similar structures have been accurately de- scribed by lawyers who practised in those early days. For instance, we know that the first court- house at Springfield— destined to be the capital of Illinois— was erected at a cost of forty-two dollars and fifty cents. 1 It was built of rough logs and consisted of one room,— "the jury re- tiring to any sequestered glade they fancied for their deliberations,"— and the Indiana courts were almost as unpretentious. They were either 1 It is a significant fact that the jail cost twice, as much as the court-house. 19 LINCOLN THE LAWYER frame or log structures, generally divided into two rooms, the larger serving as a place of trial and the smaller as clerk's office, judge's cham- bers, and jury-room combined. At one end of the trial-room there was usually a platform three feet high, and on this was placed the judge's bench, a rough board affair capable of seating three men. In front of this platform stood a crude plank settee for the lawyers and a small table for the clerk of the court, and official pri- vacy was insured for those dignitaries by an im- provised railing consisting of a long pole fas- tened to the walls with withes. The rest of the space was open to the public, and so freely did it avail itself of the privilege that there was sel- dom even standing room inside the building, and seats in the windows were always at a pre- mium. One of the circuit prosecuting attorneys of Indiana who practised during Lincoln's boyhood has left a record of his observations at Fall Creek. "The court was held in a double log cabin," he writes; "the grand jury sat upon a log in the woods, and the foreman signed the bills of indictment, which I had prepared, upon his knee. There was not a petit juror that had 20 PRIMITIVE PRACTICE IN INDIANA shoes on; all wore moccasins and were belted around the waist and carried side-knives used by the hunters." It must not be inferred from this that only- jurors went armed and caparisoned in this fashion. In the days when Lincoln haunted the Boonville courts, everybody, from the judge to the humblest spectator, wore deer-hide suits and moccasins of the same material. Indeed, he had arrived at manhood before clothing of dyed wool and tow began to be worn, and for a long time afterward it was only the women who adopted such garments. But the judge and juries in buckskin were shrewd and fearless administrators of justice, and the lawyers who practised before them were men of equal caliber. Almost anyone who chose to do so could follow the profession of the law. 1 There were no regular examinations for admis- sion to the bar, and a license to practice could be obtained by any applicant of good moral stand- ing, which was about the only qualification most of the practitioners lacked, according to one au- ir rhis is virtually the case in Indiana to-day. See Horner's an- notated Indiana Statutes (revision of 1881 supplemented to 1901), chap, ii, art. 31, sec. 962. 21 LINCOLN THE LAWYER thority. If a man was a fluent talker, pugna- cious, shrewd, and able "to think on his feet," he was fully equipped for the duties of the profes- sion. Education was not necessary, and al- though there were a few advocates in the early history of Indiana who were fairly well read, none of them had any pretentions to learning. Indeed, scholarship would have been lost on the courts, to say nothing of the juries, for many of the judges were uneducated, some were almost illiterate, and none of them well grounded in the law or versed in its technicalities. General Marston Clark was one of the judges whose portrait has fortunately been preserved. He was an uneducated, backwoods, muscular six- footer whose judicial costume was a hunting- shirt, leather pantaloons, and a fox-skin cap, with a long queue down his back and who wrote his name "as large as John Hancock in the Dec- laration of Independence." Truly a formidable figure of a man, and although history reports that he was "no lawyer," his conduct of the case of one John Ford demonstrates that no lawyer could trifle with him. This John Ford was arrested for horse-steal- ing, and his counsel interposed various technical 22 PRIMITIVE PRACTICE IN INDIANA objections to the indictment on the ground that the prisoner's name was John H. Ford, and not plain John Ford; that there was no value al- leged for the stolen horse; and, finally, that the animal was not a horse, but a gelding. All of these preliminary pleas were overruled by the court, and the trial proceeded, with the result that the prisoner was convicted and sentenced to thirty-nine lashes. Then the defendant's at- torney moved for a new trial because there was no proof that the crime had been committed in Indiana. Judge Clark was no lawyer, but he saw the force of this contention, and advised counsel that he would take the matter under con- sideration and render his decision within twenty- four hours. The moment the court adjourned, however, he ordered the sheriff to see that the thirty-nine lashes were well laid on, and when the court reopened next morning, he gravely took up the unfinished business of the previous day. He had come to the conclusion, he an- nounced, that the point raised by Ford's attor- ney was well taken and that a new trial must be granted. But at this juncture the prisoner in- terposed in his own behalf, protesting that he knew when he was beaten, and that he had had 23 LINCOLN THE LAWYER enough law and desired the court to take no fur- ther trouble on his account. Another judge is reported to have quelled a disturbance in his court by descending from the bench and thrashing the nearest offenders to a standstill. "I don't know what power the law gives me to keep order in this court," he admitted, as he re- sumed his coat and the bench, "but I know very well the power God Almighty gave me." Little informalities of this sort were not in- frequent, but they detracted nothing from the dignity of the courts, though the free-and-easy proceedings were sometimes astonishing. "As I entered the court-room," relates an ob- server of the Hudson trial, 1 "the judge was sit- ting on a block, paring his toe-nails, when the sheriff entered out of breath and informed the court that he had six jurors tied up and his dep- uties were running down the others" Apparently jury duty was no more popular in those days than it is now. But because these frontier courts and their presiding officers lacked the formality and de- corum which a later day demands, it must not be *See Smith's "Early Trials in Indiana." 24 PRIMITIVE PRACTICE IN INDIANA inferred that there was any element of farce or travesty in the administration of the law. The surroundings which to-day lend substance and dignity to courts would not have been tolerated on the frontier. Formalities would have divested the proceedings of all meaning and interest for the people, and made a mummery out of what was real. The pioneers were not peas- ants who had to be impressed by ceremonials and awed into a respect for authority. They were thoughtful, independent men, governing themselves, and the judges, the courts, and the laws were of their own making. The idea of a judge maintaining order with his fists may seem ludicrous to us; but judicial robes, to say nothing of mace-bearers, wigs, and canopies, would have seemed far more laughable to the settlers. They possessed a natural genius for self-gov- ernment, recognized the authority of the law, and they fulfilled it. In the case of Hudson before referred to, where the judge was surprised at his toilet and the jury had to be corralled by sheriff's deputies, the defendant, a white man indicted for killing an Indian, was promptly convicted despite the fearful prejudice against the redskins which ex- 25 LINCOLN THE LAWYER isted among the pioneers — an exhibition of judi- cial temperament and regard for duty which should shame many a jury of to-day. It was among men of this stamp and charac- ter that Lincoln passed his boyhood, and it was their administration of justice which won his re- spect and first encouraged him to think of a legal career. 26 IV LEGAL APPRENTICESHIP 1INCOLN had just reached his majority -^ when his father, who always saw promis- ing land on the other side of his fence, decided to migrate from Indiana, and after a long journey, fraught with all the hardships inciden- tal to travel in those days, the family reached Decatur, Macon County, Illinois, in the spring of 1830. Up to that time the young man had given his father the entire benefit of his services, but he had long been anxious to start life on his own account, and shortly after the new home- stead was staked out he began to shift for him- self. Except in the matter of health and strength, he was poorly equipped to earn his own living, for he had no education beyond reading, writing, and ciphering to the rule of three, and his mental power was still largely undeveloped. For a year he attempted nothing more ambi- 27 LINCOLN THE LAWYER tious than manual labor, working in the imme- diate vicinity of his father's house at odd jobs of all sorts, including the splitting of several thou- sand rails destined to become famous in Ameri- can history. One of those odd jobs took him to the village of New Salem, and there he became what the Fell autobiography calls "a sort of clerk" in Offutt's grocery store. The duties of this office were not very onerous, however, and the young clerk was soon devoting every spare moment to his books. People used to meet him trudging along the country roads, reading as he walked; customers found him stretched upon the store counter, absorbed in his books; and his compan- ions reported that he studied late into the night. Certainly he was self-educated in the broadest sense of the term, and it has been truly said that he "never finished his education. To the night of his death he was a pupil, a learner, an in- quirer, a seeker after knowledge, never too proud to ask questions, never afraid to admit that he did not know." Offutt's assistant, however, never had the slightest intention of remaining a clerk, and, mindful of his ambition to become a lawyer, 28 LEGAL APPRENTICESHIP he attended a debating club, made up of boys of the neighborhood, where he had a chance to "practise polemics," as he expressed it, and speedily gained a reputation among his fellows as a dangerous opponent in argument. Before the days of this club, however, he had already demonstrated his ability as a speaker. Indeed, he had not been long in Illinois before he had talked down one local orator; and as the general store was the accepted meeting-place and center of public opinion in New Salem, he had unbounded opportunity to exercise his un- doubted "gift of gab." It is not probable that the embryo lawyer ob- tained much information from the legal lumi- naries of New Salem, but he attended most of the trials conducted by Bowling Green, the local justice of the peace, who is said to have decided a hog case known as Ferguson v. Kelso by de- claring that the plaintiff's witnesses were "damned liars, the court being well acquainted with the shoat in question, and knowing it to be- long to Jack Kelso." This and other similar exhibitions of judicial temperament were pos- sibly responsible for Lincoln's first bill in the legislature, which was a measure to restrict the 29 LINCOLN THE LAWYER jurisdiction of justices of the peace. It could not have been aimed directly at Bowling Green, 1 however, for he and Lincoln were fast friends, and long before the j^oung student was admitted to the bar he was allowed to practise in an infor- mal way before the eccentric justice. Springfield was only a few miles from New Salem and there is every reason to believe that Lincoln attended the sessions of the circuit &&ZS AUTOGRAPH OF BOWLING GREEN court at the county-seat; but whatever else he may have done at this time with the definite pur- pose of preparing himself for his future calling, he was unquestionably developing those traits of character which distinguish really great law- yers from those who are merely successful. 1 The biographies give several different spellings of the judge's name, and in them he figures as Bowlin and Bowline as well as Bowling Green. The writer has, however, examined documents on file in the Illinois courts signed by the justice, who spelled his name as it appears in the text. 30 LEGAL APPRENTICESHIP It is a significant fact that in a community where crime was virtually unknown, where plain, straightforward Sealing was assumed as a mat- ter of course, and credit was fearlessly asked and given, Lincoln won an enviable reputation for integrity and honor. In a moral atmo- sphere of this sort ordinary veracity and fairness attracted no particular attention. Honesty was not merely the best policy ; it was the rule of life, and people were expected to be upright and just with one another. But when a clerk in a country store walked miles to deliver a few ounces of tea innocently withheld from a cus- tomer by an error in the scales, and when he made a long, hard trip in order to return a few cents accidentally overpaid him, he was talked about, and the fact is that "honest Abe" was a tribute, not a nickname. To suggest that inflexible integrity is indis- pensable to the make-up of a great lawyer is, of course, to challenge the sneer or the smile of the cynically minded. The jests about honest law- yers have become classic, and they will forever continue to delight. Yet, despite the humorist and the cynic, there is probably no profession in the world which makes greater demands upon 31 LINCOLN THE LAWYER integrity, or presents nicer questions of honor, or offers wider opportunities for fairness, than the profession of the law. The fact that many distinguished practitioners have not maintained the highest standards of the calling, that most of them have compromised for monetary or mo- mentary success, that a few have actually abused their great opportunities, does not in the least impeach the proposition that extraordinary in- tegrity, honor, and fairness are the essential qualities of a great lawyer. It merely demon- strates how rare great lawyers are. Of course it does not follow that because a lawyer is a good, or even a great, man, he must be a great, or even a good, lawyer. But one thing is certain : no man deserves to be classed as a great lawyer who does not fairly exemplify the noblest aspirations of his calling. If the number of litigations in which a lawyer has been engaged be the true test of professional eminence, some of the modern "negligence attorneys" must be ad- mitted to the highest station ; if the monetary im- portance of their clientage is to count, the legal guardians of great corporate interests must out- rank all who have gone before; if success in the 32 LEGAL APPRENTICESHIP courts is the criterion, Aaron Burr must have first honors, for he never lost a case. But if loftier considerations enter into the question of what constitutes a really great law- yer, — if it is right to demand something nobler than advocacy, something broader than com- mercial aptitude, something more influential than erudition and more enduring than success, — then it is proper to insist on personal character as one of the elements that determine the just rank of any member of the profession. No man ever believed in his calling more thoroughly than Lincoln, and he had no patience with the much-mouthed charge that honesty was not compatible with its practice. "Let no young man choosing the law for a calling yield to that popular belief '" he wrote. "If, in your judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation rather than one in the choosing of which you do, in ad- vance, consent to be a knave/' If the writer of those lines abated anything of his boyish integrity under the stress of the workaday duties of the law, his theories in regard 33 LINCOLN THE LAWYER to its practice are neither interesting nor instruc- tive. But if he lived them out and proved them practical, they are of the first importance, and they have a direct bearing upon his much-dis- puted place in the profession. In either event, however, it is fair to test Lin- coln the lawyer by his own standards; to inquire whether his conduct as a member of the bar con- formed to the reputation which he earned as a clerk in Offutt's store; to compare his profes- sional ethics with his private principles ; to ascer- tain whether he compromised with his conscience in the interests of his clients, and to judge his legal career accordingly. 34 V Lincoln's first argument and his early attitude toward the law LINCOLN never sought to make himself a -* general favorite, and yet he had not been long in New Salem before he was the most popu- lar man in the town. Doubtless he possessed, even in those early years, that power of personal mag- netism which he afterward exerted so command- ingly in the courts and upon all sorts and condi- tions of men. But it is not necessary to insist upon this to explain his immediate favor with the New Salemites. He could tell a good story, make a creditable stump-speech, give an excel- lent account of himself in contests of strength, and hold his own against all comers in the daily debates at the village forum. Moreover, he lis- tened attentively when other people talked, never boasted of his physical prowess, and was tol- erant of all intelligent opinion. His extreme 3 35 LINCOLN THE LAWYER popularity with men of his own age is particu- larly remarkable, however, when we remember that he neither drank nor smoked; for young men are apt to regard the use of tobacco and sti- mulants as essential to good-fellowship and manly camaraderie, and this was especially true of the settler days. Lincoln was not, however, a total abstainer in any strict sense of the words. He did not drink intoxicants because he did not like them, and he did not smoke for a similar reason. Judge Douglass once undertook to ridicule him on this subject. "What! Are you a temperance man?" he in- quired sneeringly. "No," drawled Lincoln, with a smile, "I'm not a temperance man, but I'm temperate in this, to wit, — I don't drink." 1 With his elders the young storekeeper found favor for a variety of reasons. They soon dis- covered that he knew more than any of them, but never presumed upon it; that he was genial and obliging, always ready to lend a hand at 1 This conversation occurred in the presence of Judge Lawrence Weldon, who repeated it in an interview with the writer. Judge Weldon was the last surviving lawyer who traveled the circuit with Lincoln. [See Foreword.] He died in the spring of 1905, after a long and useful career on the bench of the United States Court of Claims in Washington. 36 From a photograph by Rice Judge Lawrence Weldon EARLY APTITUDES anything, from roofing a barn to rocking a baby ; and that he was as reliable in business matters as he was in neighborly deeds and kindnesses. But perhaps his most winning quality with young and old alike was his sincere belief in his fellow-townsmen and their community. Local pride never had a more buoyant champion than he. For him Sangamon County in general and New Salem in particular, was the promised land, and he was confident that the people were equal to the task of developing it according to its needs. Thus when it was first suggested that the shal- low, snag-bound Sangamon River was navigable and might be made a great highway of com- merce, he eagerly championed the theory and worked with voice, pen, and hand to realize a practical result. The Sangamon is still unnav- igable and New Salem has disappeared, but Lin- coln's plea for improving the waterway remains as evidence of his sincere belief in the future of the community and to show us what he could do with a weak cause at the age of twenty-one. The argument is not remarkable, but it is ex- ceedingly interesting and suggestive. Although he was young and boyishly enthusiastic, Lincoln did not overstate the possibilities nor underesti- 39 LINCOLN THE LAWYER mate the difficulties of his case; and despite the really laughable attempt which was afterward made to force the passage of the Sangamon, there is nothing ludicrous in his plea. What he claimed sounds reasonable, and what he hoped for possible even in the face of failure. This early effort plainly indicates Lincoln's natural aptitude for logical statement. But it does more than that. It displays a trait which few lawyers possess; for the ability to present facts clearly, concisely, and effectively without taking undue advantage of them is a rare legal quality. It requires not only ability but courage ; not only tact, but character. It is one of the in- fallible tests which distinguish the legal bravo from the jurist, and it will be demonstrated in a future chapter that Lincoln fulfilled it in mas- terful fashion. It was in a circular announcing himself a can- didate for the State legislature that this Sanga- mon River argument appeared; for Lincoln, en- couraged by the good will of his New Salem friends, had decided to make trial of his political fortunes. There was, therefore, a double tempta- tion to indulge in extravagant promises and prophecies. He believed in his cause and he 40 EARLY APTITUDES wanted to please his constituents, and yet there is not a word of exaggeration in the entire address. It is quiet, frank, earnest, and simple. This circular is important in the history of Lincoln's professional career not only because it contains his first argument, but also because it records his earliest public comment upon law. The evils of usury had been widely discussed throughout the State of Illinois for some time; and as there was a radical difference of opinion concerning the remedy, each candidate was ex- pected to express his views upon the much- mooted question. Exorbitant interest was impov- erishing borrowers, but it was feared that strin- gent laws might drive capital altogether out of the country and arrest its development. Lincoln announced himself as favoring a strict law on the subject, despite the objection that a high rate of interest might be preferable, in many cases, to no loan at all, and his answer to this has served to shock more than one of his biographers. "In cases of extreme necessity," he wrote, "there could always be means found to cheat the law; while in all other cases it would have its in- tended effect. I would favor the passage of a law on this subject which might not be very easily 41 LINCOLN THE LAWYER evaded. Let it be such that the labor and diffi- culty of evading it could only be justified in cases of greatest need." 1 This temperate announcement seems very re- grettable to certain estimable historians, who pull a long face and record their surprise at words which, as one of them puts it, "sound strange enough from a man who in later life showed so profound a reverence for law." But the immature Lincoln was wiser and more broad-minded than his disapproving admirers. He knew that the enforcement of any law de- pends entirely upon public opinion, and he was not afraid to admit that evasions of the law were possible and, under certain circumstances, per- missible. There was no sham or pretense or hide-bound reverence for law as law in his mental make-up. He believed in its spirit and not in its letter. It is the Shylocks and not the Lincolns who pose as the champions of statutes and de- mand their strict interpretation. But the high-minded commentators who cen- sure Lincoln's attitude in this matter might have found further evidence of youthful indiscretion 1 The circular containing this statement and the Sangamon River argument was issued in March, 1832. 42 EARLY APTITUDES in this circular, where its author discusses the advisability of a proposed revision of all the State laws. "Considering the great probability that the framers of those laws were wiser than myself," he naively remarks, "I should prefer not med- dling with them unless they were attacked by others; in which case I should feel it both a privi- lege and a duty to take that stand which, in my view, might tend most to the advancement of justice." Could not this be twisted into an assertion that he might, under certain circumstances, side with those who assailed the laws? A deplorably anar- chical statement if law be superior to justice. But it is precisely because Lincoln never acted upon any such theory that his legal career is noteworthy and exceptional. He never surren- dered his conscience to a code; his sense of jus- tice was never cowed by the tyranny of "leading cases"; and the decision of the highest court in the world never succeeded in convincing him that wrong was right. His attitude on this subject was fully ex- plained a few years later, in an address delivered before the Young Men's Lyceum at Springfield, 43 LINCOLN THE LAWYER when, after urging that reverence for the law should be "the political religion of the nation/' he defined his position in these strangely pro- phetic words: "But when I so pressingly urge a strict ob- servance of all laws, let me not be understood as saying that there are no bad laws, or that griev- ances may not arise for the redress of which no legal provisions have been made. I mean to say no such thing. But I do mean to say that al- though bad laws, if they exist, should be re- pealed as soon as possible, still while they con- tinue in force, for the sake of example, they should be religiously observed. In any case that may arise, as, for instance, the promulgation of abolitionism, 1 one of two propositions is neces- sarily true; — that is, the thing is right within itself and therefore deserves the protection of all law and all good citizens — or it is wrong and therefore proper to be prohibited by legal enact- ments ; and in neither case is the interposition of mob law either necessary, justifiable, or excus- able." These wonderfully significant sentences were 1 The italics are the author's. This speech was delivered January 27, 1837. 44 EARLY APTITUDES penned before Lincoln had reached his maturity, before he had actively entered on the practice of the law, before the Fugitive Slave Law was an issue, and long before the Dred Scott case was dreamed of. We shall have occasion to see that his theories were tested in the most practical manner by the very situation which he invoked as illustration, and to note, in his professional attitude, a mas- terful distinction between bowing to legal au- thority and submitting tamely to its decrees. 45 VI LINCOLN THE LAW STUDENT THE quality of the talk which passed over the counters of Offutt's store was probably superior to the quality of its merchandise, for, despite the remarkable popularity of the sales- man, the business dwindled until it finally "winked out," as Lincoln said of one of his later ventures. At this crisis, however, an event occurred which set all the country talking, and the passing of the village emporium was scarcely noticed. Black Hawk, an Indian chief, was reported to be on the war-path, and the governor of the State hastily called for volunteers. Lincoln instantly responded, and was subsequently elected captain of his company — a success which, he declared, gave him more pleasure than any of the honors which afterward fell to his lot. The so-called Black Hawk War lasted only a 46 THE LAW STUDENT few weeks. It was in many ways a ridiculous, if not contemptible affair, and Lincoln did not reach the front until it was virtually over. His company was disbanded shortly after it was formed, but he reenlisted as a private for the remainder of the campaign, and was finally mus- tered out by a young lieutenant of the regular army whom he was destined to meet again under more dramatic auspices— Major Robert Ander- son, the commander of Fort Sumter. It was characteristic of the man that at a time when military titles were the fashion Lincoln did not retain his, and never would permit any one to address him as captain. Indeed, years afterward, when congressmen attempted to make political capital for General Cass out of that gentleman's not too distinguished record in the War of 1812, he disposed of the pretensions with a laugh at his own military history. "By the way, Mr. Speaker," he began with deep gravity, "did you know that I was a military hero? Yes, sir. In the days of the Black Hawk War I fought, bled, and came away. . . I was not at Stillman's defeat, but I was about as near to it as Cass was to Hull's surrender, and, like him, I saw the place very soon afterward. . . . 47 LINCOLN THE LAWYER If General Cass went in advance of me in pick- ing huckleberries, I guess I surpassed him in charges upon the wild onions. If he saw any live, fighting Indians, it was more than I did; but I had a good many bloody struggles with the mosquitos. Mr. Speaker, if I should ever con- clude to doff whatever our Democratic friends may suppose there is of black-cockade Feder- alism about me, and thereupon they shall take me up as their candidate for the Presidency, I pro- test they shall not make fun of me, as they have of General Cass, by attempting to write me into a military hero." 1 Farcical as this campaign was, it had, never- theless, an important bearing on Lincoln's pro- fessional career ; for it brought him to the notice of his future law partner, Ma j or John T. Stuart, one of the Springfield volunteers, and it was the major's friendly advice and use of his small law library which encouraged the ex-clerk to pur- sue his legal studies. The political canvass in Illinois was almost over when the "veteran" of the Black Hawk War returned to New Salem; but there was still time to make a few speeches in aid of his candi- 1 Congressional Record of July 27, 1848. 48 THE LAW STUDENT dacy for the State legislature, and he threw him- self into the contest with vigor and spirit. When the votes were counted, however, he found him- self rejected— the first and only time he was ever defeated by direct popular vote. But Lincoln had stated in the circular announc- ing his candidacy that if the people should see fit to keep him in the background, he was too familiar with disappointments to be very much chagrined, and there is no indication that he was particularly discouraged at the result, although it compelled him to seek immediate employment, and interfered to that extent with his prepara- tion for the bar. He had to earn his living, but if he could find work which would allow him some leisure for study, he did not care much what it was and when a dissolute fellow named Berry, who had purchased an interest in a grocery-store, proposed a partnership, Offutt's ex-clerk grasped the opportunity. A more ill-assorted couple than Berry and Lincoln it would be difficult to imagine but their ideas of the partnership were mutually satisfac- tory. The senior partner drank up all the profits of the business, and the junior member devoted himself to the study of law. As might be ex- 49 LINCOLN THE LAWYER pected, this division of the labors and responsi- bilities of shopkeeping was not highly remunera- tive, and Lincoln afterward remarked that the best stroke of business he ever did in the grocery line was when he bought an old barrel from an immigrant for fifty cents and discovered under some rubbish at the bottom a complete set of Blackstone's Commentaries. That was a red-let- ter day in his life, and we have his own word for it that he literally devoured the volumes. They must, indeed, have been refreshing after the dry Indiana statutes; and if Lincoln's choice of a profession must be attributed to a law-book, no more plausible selection than Blackstone's Commentaries could possibly be made. Berry & Lincoln virtually lived on their stock of merchandise, Berry drinking and Lincoln eating it up, and matters soon reached a crisis which drove the junior partner into the fields again, where he undertook all sorts of rough farm labor, from splitting rails to plowing. As a man-of -all-work, however, Lincoln did not prove altogether satisfactory to his employers. He was too fond of mounting stumps in the field and "practising polemics" on the other farm- hands, and there was something uncomfortable 50 THE LAW STUDENT about a plowman who read as he followed the team, no matter how straight his furrows ran. Such practices were irritating, if not presump- tuous, and there is a well-known story about a farmer who found "the hired man" hying in a field beside the road, dressed in his not too immaculate farm clothes, with a book instead of a pitchfork in his hand. "What are you reading?" inquired the old gentleman. "I'm not reading; I'm studying," answered Lincoln, his wonderful eyes still on the pages of his book. "Studying what?" "Law, sir." The old man stared at the speaker for a moment in utter amazement. "Great— God— Almighty!" he muttered as he passed on, shaking his head. But even with odd jobs and the postmaster- ship of New Salem, 1 Lincoln could scarcely make ends meet, and he was glad to receive the appointment of deputy to Calhoun, the county 1 This appointment, "too insignificant to make polities an ob- jection," was received in May, 1838, from, the Jackson administra- tion, and it was the only Federal patronage which Lincoln ever enjoyed. 51 UNIVERSITY OF ILLINC LIBRARY LINCOLN THE LAWYER surveyor. He was sorely in need of the salary, but he would not accept the office under any misunderstanding. With characteristic frank- ness he admitted that he knew nothing about sur- veying, and explained that he was not of his employer's political faith. Being assured, how- ever, that his politics made no difference, he applied himself to the study of surveying, and so well did he qualify himself for the work that none of his surveys was ever questioned, and the information he acquired stood him in good stead when he came to practice law. One of his legal opinions on a question of surveying is in existence to-day. Meanwhile what remained of the grocery busi- ness was sold on credit. The purchasers defaulted, and Berry died, leaving his partner to shoulder all the not inconsiderable debts. Credit in those days was freely extended, and it was not considered dishonorable to evade the payment of claims which passed into the hands of speculators. Berry & Lincoln had obtained very little when they purchased the grocery, and the sellers probably parted with the firm's notes for a small fraction of their face value. The men who bought paper of that sort usually sold it again at the first opportunity or traded it 52 JU^ JLZZZ*^ ^5&~.— ofi&C ^w. Jie^f a^ /£*-> *&? /t5 ^ t>7>w»^ ^(^ /^Ly-O JUX-^ >V /&%Ou/h /£?£& frZU* ,-1^4/ ^gv- dx*s-i-c6<*~jr /^£lo ftu^C^JlXZ, _fl«~j /iJS^/ ^^_c^3U/ ^^-e^Oi yl?fZZa*~pA> £&Cr ^c^~^-j ^tv-rw- y&& 0ftyur>^ ~^i^~ r2 _ /£U^C - £*-£?. t-^ey ^v rffc^. OV*-*** ' V {Z^-4s <*s Trom collection of John W. Thornton, Esq. Letter written by Lincoln concerning preparation for the bar. See also letters to two young law students, Isham Reavis (1855) and J. M. Brockman (1860), quoted in " The Career of a Country Lawyer" by Charles W. Moores, Esq., printed by American Bar Association. grossing desk-work as is now required of am- bitious attorneys ; but there was more dull, clerical routine than falls to the lot of the average practitioner of to-day. All legal papers had to 76 FIRST PARTNERSHIP be written out in long-hand, and as there were no duplicating-machines, every additional copy meant considerable manual labor, and most of this drudgery fell upon the junior partner. He not only drew the papers, but he kept the books of the firm, and while Stuart was in Congress he tried almost all the cases. That he had virtually no legal precedents to guide him was distinctly an advantage. In these days of encyclopedias and digests, a man who enters upon the study of law with a creative mind, capable of logical deductions and close reason- ing, is apt to become "case-ridden" before he has fairly started on his practice. Many modern students unconsciously surrender their judg- ment to the guidance of the court of last resort. Their sense of justice sways with the pre- vailing opinion ; they cease to reason, and merely parrot the latest decisions. Lincoln was subjected to no such stunting influences. He reasoned out new propositions with an unbiased mind, not with the idea of agreeing or disagreeing with the previously expressed conclusions of some other intellect, but to get at the truth of the matter; and it was doubtless this training which enabled him at a 77 LINCOLN THE LAWYER later period to state political issues with more originality and clearness than any other speaker of his day. There is a story to the effect that when he argued his first appeal before the Supreme Court at Springfield, he announced that all the adjudi- cations he had been able to find were against his contention, and he would, therefore, merely read the decisions he had collated and submit the mat- ter to the court. 1 If this story be true, it is certainly fortunate that legal precedents were rare in Illinois, other- wise Lincoln might have been browbeaten by authority, as are some of our case-lawyers of to-day. The anecdote is not authenticated, how- ever, and it is probably apocryphal. Even if the young advocate had been doubtful of his cause, he never would have meekly read it out of court with adverse decisions. As a matter of self- interest, he would have made the best possible argument ; for the public was largely represented at all judicial hearings, and it was highly im- portant for a beginner to make a good impression on the assembled audience. He was far too i Lincoln's first case in the Supreme Court was Scammon v. Cline, reported, in 3 Illinois, 456; and as he had won in the lower court, he had no reason to despair. 78 FIRST PARTNERSHIP shrewd to have made an exhibition of himself by quoting decisions against his own client, and tamely submitting his cause to the court. Such a performance would have ruined a newcomer, for it would have been laughed at in every corner of his small community before the dav was over. Lincoln, on the contrary, made a favorable impression from the start, and Spring- field soon came to hold his legal ability in high esteem. Although it was important for a young attor- ney to give a good account of himself in the public sessions of the courts, it was scarcely less essential that he should make himself felt in the rough-and-tumble debates at the general store or other headquarters of public opinion. The law- yer who waited for business to come to him in those days would never have built up a clientele. The village forums were the places where repu- tations were won or lost, and the man who made his mark there was soon sought as a legal cham- pion. Lincoln more than held his own in these semi-public discussions and arguments, and it was not long before his advent was hailed with delight by the habitues of Speed's store, the most popular arena in Springfield. 79 LINCOLN THE LAWYER But though his friends and neighbors recog- nized his ability and proclaimed it, his uncouth appearance was decidedly against him, and he not only failed to inspire strangers with confi- dence, but actually invited their derision and contempt. Shortly after he became associated with Stuart, the latter sent him to try a case in McLean County for an Englishman named Baddeley, giving him a letter of introduction which advised the client that he could rely upon the bearer to try his case in the best pos- sible manner. Baddeley inspected his counsel's partner with amazement and chagrin. The young man was six feet four, awkward, ungainly and appar- ently shy. He was dressed in ill-fitting home- spun clothes, the trousers a little too short, and the coat a trifle too large. He had the appear- ance "of a rustic on his first visit to the circus," and as the client gazed on him, his astonishment turned to indignation and rage. What did Stuart mean by sending a bumpkin of that sort to represent him? It was preposterous, insulting, and not to be endured. Without attempting to conceal his disgust 80 FIRST PARTNERSHIP Baddeley unceremoniously dispensed with Lin- coln's services and straightway retained James A. McDougall, later a United States senator from California, to take charge of the case. History does not relate whether the irate Eng- lishman won or lost the cause, but we know that he lived to become one of Lincoln's most ardent admirers. This was not the last time Lincoln's personal appearance was to prejudice him in the practice of the law. Many years later, Stanton, then one of the leading lawyers in the country, was to snub "the long-armed creature from Illinois" who presumed to assist him in a celebrated case; and he also lived to revise his judgment and acknowledge the superiority of the man he flouted. 81 IX HIS EARLY CASES AND COMPETITORS. THE record of Lincoln's practice with Stuart is very meagre and unsatisfac- tory. The first case with which his name was connected as an attorney was Hawthorne v. Woolridge, one of three cases growing out of the same matter which was being liti- gated in Stuart's office before Lincoln was admitted to the bar, and of which he appar- ently had charge during his apprenticeship. 1 The action, however, never came to trial, being settled out of court, and the papers indicate that it and the other cases with which it was con- i The action was begun on July 1, 1836, and was discontinued on March 17, 1837. Every biography which mentions the subject states that Lincoln lost his first case, but this is a palpable error. Costs were imposed on his client by the order of discontinuance in one of the three actions, and against his opponent's clients in another, while in the third the costs were divided,— all of which was evidently part of the compromise by which the whole litiga- tion was settled; but none of the cases was ever tried. 82 HIS EARLY CASES nected made much ado about nothing, a not uncommon feature of pioneer lawsuits. Peo- ple carried their differences into the courts far more readily in those days than they do now, and petty actions for trespass, assault, and similar grievances filled the docket. The conduct of such cases did not require any very intimate * (J? // ) ' From Major Wm. H. Lambert's collection "Praecipe" (in Lincoln's handwriting) in the case of Hawthorne v. Woolridge, which was Lincoln's so-called first case knowledge of law; and as the advocates relied largely on fervid oratory to influence the juries, Lincoln had no trouble in meeting his opponents on even terms. Some of his early political speeches which have been preserved demonstrate that he was capable of providing flowery elo- quence when occasion demanded it, and he must 83 LINCOLN THE LAWYER have given the country jurors just the sort of talk they liked, for he was admittedly successful as a pleader. Springfield instantly recognized him as a first- class stump-speaker, an irresistible mimic, and an inimitable raconteur, and it was not long before his humorous stories and dry, witty remarks began to pass from mouth to mouth; but he had been in practice fully a year before he demonstrated his qualities as a lawyer, and then it was discovered that this tolerant, good- natured attorney, though slow to wrath, was, when once aroused, a relentless enemv to the evil- doer. One James Adams, who called himself a gen- eral and posed as a lawyer, became a candidate for the office of probate justice in Springfield. At or about the same time a widow named Anderson discovered that some one had forged her husband's name to a deed of his real estate, and that the property to which she supposed she was entitled stood in the name of "General" Adams. At this stage of the proceedings she retained Stuart & Lincoln, and trouble began for the "general." Lincoln speedily made up his mind that this man was a scoundrel, and he 84 HIS EARLY CASES not only brought suit for the recovery of the widow's property, but camped on Adams's trail, attacking him with handbills, newspaper arti- cles, and in the courts, and never resting until he unearthed a copy of a New York indictment charging him with another forgery, and describ- ing him as "a person of evil name and fame and of wicked disposition." This put the "general" to flight; the woman won her suit and recovered the property, and Lincoln's services as a lawyer began to be in demand. But though his cases were numerous, they were not very lucrative. Only two or three of the fees recorded in the firm's books for the year 1837 amount to $50, and most of the entries show $5 charged as trial fee. A chancery case under date 1837-8 shows a debit of $50, below which is written "credit by coat to Stuart, $15," making the net cash charge $35, which indicates that the firm sometimes "took it out in trade." These modest retainers, however, do not by any means indicate that Stuart & Lincoln were unsuccessful or even in a small way of business. The firm ranked well in Springfield, and the capital was at that period second only to Chi- cago in importance in the State of Illinois. The 85 LINCOLN THE LAWYER days of great retainers and vast fortunes accumulated in the practice of the law had not yet arrived, and the highest legal authorities in the land did not command very princely rev- enues. There is reason to believe that Daniel Webster's income from the practice of his pro- fession did not average $10,000 a year, and often fell far short of it. (Sfrjfar& ' From General Alfred OrendorfTs collection Lincoln's jocose caption over an entry of Stuart & Lincoln's private docket Lincoln never kept any private account-books, and the firm records are incomplete, so it is impossible to tell exactly what his early prac- tice was worth in dollars and cents. At all events, it was sufficient, with his salary as State legislator, to enable him to pay his expenses and reduce his debts, and this was his only ambi- tion in monetary matters. 86 HIS EARLY CASES In 1839, while Lincoln was attending the ses- sions of the legislature, a company of players "on tour" reached the city, and their adventures, as described by the late dean of the American stage, then a little lad of ten, give an excellent picture of the times. Springfield being the capital of Illinois [writes Mr. Jeffer- son in his Autobiography], it was determined to devote the entire season to the entertainment of the members of the legislature. Having made money for several weeks previous to our arrival, the manager resolved to hire a lot and build a theater. The building of a theater in those days did not require the amount of capital that it does now. Folding opera- chairs were unknown. Gas was an occult mystery not yet acknowledged as a fact by the unscientific world of the West. The new theater was about ninety feet deep and about forty feet wide. No attempt was made at ornamentation ; and as it was unpainted, the simple lines of architecture upon which it was constructed gave it the appearance of a large dry-goods box with a roof. I do not think my father nor Mr. McKenzie (his partner) had ever owned anything with a roof until now, so they were naturally proud of their possession. In the midst of our rising fortunes a heavy blow fell upon us. A religious revival was in progress at the time, and the fathers of the church not only launched forth against us in their sermons, but by some political manceuver got the city to pass a new law enjoining a heavy license against our un- holy" calling. I forget the amount, but it was large enough to be prohibitory. Here was a terrible condition of affairs. All our available funds invested, the legislature in session, the town full of people, and we, by a heavy license, denied the privilege of opening the new theater. 87 LINCOLN THE LAWYER In the midst of these troubles a young lawyer 1 called upon the manager. He had heard of the injustice and offered, if they would place the matter in his hands, to have the li- cense taken off, declaring he only desired to see fair play, and he would accept no fee, whether he failed or succeeded. The young lawyer began his harangue. He handled the subject with tact, skill, and humor, tracing the history of the drama from the time when Thespis acted in a cart to the stage of to-day. He illustrated his speech with a num- ber of anecdotes, and kept the council in a roar of laughter; his good-humor prevailed, and the exorbitant tax was taken off. This young lawyer [continues Mr. Jefferson] was very popular in Springfield and was honored and beloved by all who knew him, and after the time of which I write he held a rather important position in the government of the United States. He now lies buried near Springfield, un- der a monument commemorating his greatness and his vir- tues — and his name was Abraham Lincoln. There are many more or less authentic anec- dotes concerning Lincoln's early practice, but neither the character of the litigation in which he was engaged nor its remuneration affords any fair criterion of his legal ability. He should be judged by the place he won for himself 1 An examination of the old records of Springfield reveals the fact that Mr. Lincoln was at or about this time a member of the Board of Trustees of the town of Springfield and it is probable that he befriended the players in that capacity rather than as a lawyer. Mr. Isaac N. Phillips, Reporter of Decisions of the Illinois Supreme Court, first called the writer's attention to this fact which has heretofore escaped the attention of biographers. 88 HIS EARLY CASES among his contemporaries, and to estimate the value of that judgment it is necessary to know his competitors and what manner of men they were. The newly settled States attracted immigra- tion of a high order of intelligence, and Illinois was particularly fortunate in its new citizens. W&uu* fc Mis*. M^yr^L j J&L <2^w- erf ~u*^ cS7-?-/l*-*-^>-^£' /im JPa^-^^ i ft 7> . 'S t fir 'pit, cs>~~^; 6-0 ^X-v-- s^ZjCZo ff^^f^* c From the collection of Major William H. Lambert Legal document in Lincoln's handwriting, signed with the firm name, and by Lincoln, personally, as security for costs campaign necessarily diverted his attention. The election took place in 1846, and, after a sharp contest, he was returned by a large major- ity over Peter Cartwright, the itinerant preacher, who had been one of his successful rivals in his 145 LINCOLN THE LAWYER first canvass for the legislature, and whose grandson he was destined to save from the gallows by a remarkable and dramatic appeal to the jury. The partnership of Lincoln and Herndon did not immediately terminate as a result of his election; for Congress did not convene until late in the next year, and the firm continued in active practice until the senior member left for Wash- ington. Lincoln was then in his thirty-ninth year. His life had been eventful, his rise from abso- lute obscurity phenomenal, and his influence in his own State and party remarkable. But the character of the man is well illustrated in the account which he gave of himself in the "Con- gressional Dictionary," and, in view of some of the voluminous memoirs of later members which adorn the modern official directory, his contri- bution is suggestive and instructive. It contains just forty-eight words, and reads as follows: Born February 12, 1809, in Hardin County, Kentucky. Education, defective. Profession, a lawyer. 146 HEAD OF A LAW FIRM Have been a captain of volunteers in Black Hawk War. Postmaster in a very small office. Four times a member of the Illinois legisla- ture and a member of the lower house of Con- gress. 147 XV LINCOLN THE LAWYER IN CONGRESS LINCOLN took his new honors very simply, J even a little sadly. "Being elected to Con- gress," he wrote, "though I am grateful to our friends for having done it, has not pleased me as much as I expected." Later he wrote of his experiences: "I find speaking here and else- where about the same thing. I am about as badly scared and no worse than I am when I speak in court." But, unlike the Irishman he was fond of telling about, whose heart was as valiant as any one's, but whose cowardly legs would run away with him at the approach of danger, Lincoln conquered his timidity and speedily displayed a courage of which no mere politician would have been capable. In 1840, Texas had declared its independence, and under the terms of a treaty made with the Mexican general Santa Anna, the new republic 148 IN CONGRESS claimed the east bank of the Rio Grande from source to mouth as its proper and legal bound- ary. It is true that Santa Anna had made such a treaty, but as it was signed while that not too valiant gentleman was a prisoner and in fear of his life, his acceptance of his captors' ideas as to boundaries could hardly be regarded as binding on his country, especially in view of the fact that Mexico had promptly repudiated his alleged treaty and continued the war it was supposed to have settled. Under ordinary circumstances it is doubtful if the United States would have insisted upon the very questionable title of Texas to the area in dispute; but the new republic had applied for admission to the Union and the pro- visions of the act admitting it created a tempta- tion which the politicians of the country were unable to resist. The pro-slavery party in the national legislature was beginning to need rein- forcements, especially in the Senate, and the act conferring statehood upon Texas provided that several States might be carved out of the acquired territory; and as each new State meant two votes in the Senate this legislation promised to offset the admission of free States and keep the dominant party in control. Then, as a sop to 149 LINCOLN THE LAWYER the anti-slavery agitators, it was solemnly enacted that in such of the new States as lay north of 36° 30' (the Missouri Compromise line) slavery should be absolutely prohibited, while in those which lay south of that boundary slavery might exist or might not, as the constitutions of the new States provided. When it is remembered that no land claimed by Texas lay north of 36° 30', the farcical nature of this concession is apparent ; but it won enough votes in the Presidential cam- paign to insure the admission of the proposed new State, and the pro-slavery politicians had every incentive to make its dimensions as gener- ous as possible. Under all the circumstances, President Polk interpreted his election as a popular mandate to support the Texan claims, and the moment the State was admitted to the Union he ordered the army to occupy the dis- puted territory, and the country accepted the war which followed in an outburst of enthusiasm over the success of our arms. Such was the situation when Lincoln took his seat in Congress; but although some of his warmest friends were at the front and almost all his constituents approved of the war, he would not close his eyes to the facts and refused to be 150 IN CONGRESS dazzled by military glory. There was a great chance for the orator and cheap patriot in the fact that a mere handful of Americans was scat- tering thousands of Mexicans in every battle, and Lincoln was urged to make the most of his opportunity and distinguish himself. But although he knew what was expected of him and what alone would satisfy his friends, and was well aware that no critic of his country is toler- ated while its foes are under arms, he refused to compromise with his conscience and fought the government policy with all his might and main. Then for the first time in his public life his power and training as a lawj^er were called into play, and in a series of questions which no one but a skilful cross-examiner could have phrased he dis- posed of the casuistical explanations of the war. President Polk, in his several messages to Congress, had repeatedly referred to "the Mex- ican invasion of our territory and the blood of our fellow-citizens shed on our soil" and quot- ing these statements as his text, Lincoln intro- duced his now famous "Spot Resolutions," wherein the President was requested to answer eight questions calculated to inform the House whether the particular spot on which the blood 151 LINCOLN THE LAWYER of our citizens was shed was or was not at that time "our own soil." There was no escape for the Executive from these questions: they were pertinent, penetrating, and not without a certain grave humor, and each was so drawn as to pre- clude the possibility of equivocation or evasion. Moreover, they showed an historical knowledge of the facts which could not be trifled with, and no one supporting the governmental policy could possibly have answered them all without being caught in a contradiction. Resolved by the House of Representatives [they began], That the President of the United States be respectfully requested to inform this House — First. Whether the spot on which the blood of our citi- zens was shed, as in his messages declared,, was or was not within the territory of Spain, at least after the treaty of 1819 until the Mexican revolution. Second. Whether that spot is or is not within the terri- tory which was wrested from Spain by the revolutionary government of Mexico. Third. Whether that spot is or is not within a settle- ment of people, which settlement existed long before the Texas revolution and until its inhabitants fled before the approach of the United States Army. Fourth. Whether that settlement is or is not isolated from any and all other settlements by the Gulf and the Rio Grande on the south and west, and by wide uninhabited regions on the north and east. Fifth. Whether the people of that settlement, or a 152 IN CONGRESS majority of them, or any of them, have ever submitted themselves to the government or laws of Texas or of the United States, by consent or by compulsion, either by accepting office, or voting at elections, or paying tax, or serving on juries, or having process served upon them, or in any other way. Sixth. Whether the people of that settlement did or did not flee from the approach of the United States army, leav- ing unprotected their homes and their growing crops, before the blood was shed, as in the messages stated; and whether the first blood so shed was or was not shed within the inclosure of one of the people who had thus fled from it. Seventh. Whether our citizens whose blood was shed, as in his messages declared, were or were not at that time armed officers and soldiers, sent into that settlement by the military order of the President, through the Secretary of War. Eighth. Whether the military force of the United States was or was not so sent into that settlement after General Taylor had more than once intimated to the War Depart- ment that in his opinion no such movement was necessary to the defense or protection of Texas. No interpellation of a government was ever phrased in more telling questions. They were unanswerable, and the administration sought safety in silence. Lincoln soon heard from these "Spot Resolu- tions," his home friends protesting vehemently that he ought not to antagonize the gov- ernment in the face of a foreign war, and his political opponents seizing upon 153 LINCOLN THE LAWYER his action to fasten the charge of unpatri- otic conduct, if not treason, on his party. But neither reproaches nor aspersions caused Lincoln to change his attitude. To his friends he explained that he would vote, and had always voted, for whatever was necessary for the sup- port of the army in the field, but the policy which had sent it there was a national disgrace which could not be palliated with self-respect and honor. The claim that the war was not aggres- sive reminded him, he declared, of the Illinois farmer who asserted: "I ain't greedy 'bout land. I only just wants what jines mine." But Whigs and Democrats alike were carried away by the war enthusiasm. Even those who did not wholly approve of the Government's attitude accepted the result with patriotic satisfaction, and it was with keen delight that Lincoln saw the administration lose all political advantage from its policy by the Whig nomin- ation of the war-hero Taylor for the Presidency, which, Lincoln declared, "took the Democrats on their blind side." But though the popularity of his party's candidate was due to achievements in the field, the Illinois congressman urged his friends not to abate their criticisms of the war 154 IN CONGRESS or excuse it in any way. General Taylor was a brave soldier who obeyed orders even when he did not personally approve them, he declared, but his candidacy did not demand an indorse- ment of the war, and any such action would imperil the position of the party. "In law" he wrote to General Linder, "it is good policy never to plead what you need not, lest you oblige your- self to prove what you cannot." Never was a legal maxim more happily para- phrased or more aptly applied. Even in party politics the keen lawyer is apparent in Lincoln's every move. The new congressman's activities were not, however, confined to combating and exposing the administration's policies, but quietly and unobtrusively he was working for a cause in which his heart and soul were enlisted. As early as 1837, while in the Illinois legisla- ture, he had placed himself upon record as op- posing the extension of slavery and favoring its exclusion from the District of Columbia, and he had not been long in Washington be- fore he put his theories to the test. Here again the mind and hand of a shrewd lawyer are strongly evidenced. It was his legal train- 155 LINCOLN THE LAWYER ing which taught Lincoln the value of col- lateral attack. He knew, as a lawyer, that an unobtrusive precedent sometimes decides a mighty issue, and that it is often good legal tac- tics to anticipate the coming of great events by establishing the law in some minor litigation. Doubtless it was with this intent that he quietly prepared his bill for gradual compensatory eman- cipation of the slaves in the tiny District of Co- lumbia, and obtained support for the measure in high quarters. How nearly he succeeded in creat- ing this precedent is a matter of history, but it was not fated that the far-sighted lawyer should succeed in his skilful move, and the measure never came to vote. Had his manceuver been supported, it is more than possible that the great- est issue of our time would have been judicially decided instead of being left to the arbitrament of arms. At the close of the congressional session Lin- coln visited New England for the first time, making political addresses for Taylor at Boston, Dedham, Roxbury, Cambridge, and other places, and his speeches attracted some favorable notice ; but after a short tour he returned to Springfield, resolved to retire from politics at the end of his 156 IN CONGRESS congressional term. Undoubtedly he could have had a renomination had he so desired, but he felt himself pledged not to seek a second term. "I can say, as Mr. Clay said of the annexation of Texas," he wrote, "that 'personally I would not object' to a reelection, although I thought at the time, and still think, it would be quite as well to return to the law at the end of a single term. ... If it should happen that nobody else wishes to be elected, I could not refuse the people the right of sending me again. But to enter myself as a competitor of others, or to authorize any one so to enter me, is what my word and honor for- bid." Somebody else did, however, desire to be elected, and Lincoln heartily seconded Judge Logan's ambition. But Logan did not possess his ex-associate's personal charm, and only a man of strong personal magnetism could have won for the Whigs in that year, and the judge was hopelessly defeated. In March, 1849, Lincoln's official term expired, and then for the first and only time in his life he became an applicant for office. The post he desired was the commissionership of the General Land Office in Illinois, but Justin But- 157 LINCOLN THE LAWYER terfield, a fellow-member of the bar from Chi- cago was appointed, and Lincoln was afterward offered, and fortunately declined, the gover- norship of Oregon, returning to Spring- field and the practice of the law, num- bering among the clients whom he had acquired in Washington no less a person than Daniel Webster, 1 a somewhat authoritative recognition of Lincoln as a lawyer. 1 Mr. Ben: Perley Poore is authority for the statement that Webster insisted that Lincoln charged him too little for his services, and that he always felt himself in his counsel's debt. The matter on which he had retained him involved clearing the title to certain real estate in an embryo city (probably Rock Island City) laid out where Rock River empties into the Mississippi. 158 XVI LIFE ON THE ILLINOIS CIRCUIT IT has been repeatedly asserted that Lin- coln's legal reputation was entirely local, and that he was unknown as a lawyer beyond his immediate neighborhood; yet it is a fact that he had no sooner an- nounced his intention to resume practice than he was offered a partnership by Mr. Grant Goodrich, one of the prominent attorneys of Chicago, with a wide and lucrative clientage. Lincoln had an idea, however, that he was threat- ened with consumption, and fearing that city work would undermine his health, he declined the proposal and returned to his old office in Springfield. There is no evidence, except his own, that Herndon maintained anything more than a nom- inal practice after he was left to his own devices ; but nevertheless Lincoln offered to continue the 161 LINCOLN THE LAWYER partnership with him on the same generous terms which had governed their original alliance, and in the spring of 1849 the firm of Lincoln & Herndon again started in business, with head- quarters in a little three-story building on the west side of the public square of Springfield, about where the Myers Building now stands. The office was neither pretentious nor commodi- ous, but it met the requirements of the times, and its equipment, though meager, would compare very favorably with that of many a country law office of the present day. Lincoln saw but little of this official work-room, however, for he left all matters of routine and local business to Hern- don and devoted himself to circuit work — the most picturesque practice of the law which is recorded in the legal annals of this country. Illinois in 1849 was divided into nine judicial districts, each presided over by a judge who traveled from one county-seat to another within his jurisdiction, hearing civil and criminal cases and acting as an appellate tribunal for minor causes decided by justices of the peace, and during the greater part of the year these judges were continually on their rounds, followed by the members of the 162 LIFE ON THE ILLINOIS CIRCUIT local bar. 1 In early times the condition of the roads forbade the use of wheels, and the judge Drawn by Harry Fenn Original offices (on the second floor) of Lincoln & Herndon — exterior made his trips on horseback, accompanied by a cavalcade of lawyers who forded the streams and defied the weather in the interest of their clients, 'Prior to 1818 the circuit judges convened twice a year at Springfield and sat as a court of appeal (called the Supreme Court) to pass on judgments of the circuit courts sent them for 163 LINCOLN THE LAWYER making- light of many hardships in their zeal for the profession, and forming a gay if not very learned company, warmly welcomed and hon- ored in every county-seat. Before his election to Congress, Lincoln had been one of the equestrian retinue of the Hon. Samuel Treat, who at that time presided over the destinies of the Eighth Judicial Circuit, and the big leather saddle-bags 1 which carried the lawyer's papers and belongings are in existence to-day; but by 1849 wheels could be used with some comfort in traveling, and when Lincoln resumed his professional duties a procession of buggies and carry-alls marked the progress of the court. It was an open and sparsely settled country through which the judge and lawyers journeyed in those days, a country almost skirting the wil- derness from which it had been only recently reclaimed, a new, free, wind-swept, and in many review, each judge withdrawing, of course, while his own de- cisions were under consideration. After 1848, however, three Supreme Court judges were apjaointed, who performed no circuit work, and the sessions of the court were held not only at Spring- field, but also at Ottawa and Mount Vernon. i The Hon. Robert Lincoln told the writer that he distinctly remembers seeing his father start out on horseback, with his saddle-bags, to accompany the judge on the circuit. 164 K?% «£rs ) Mr Hon. Samuel H. Treat Judge of the old 8th Illinois Circuit LIFE ON THE ILLINOIS CIRCUIT respects beautiful country, rich with promise and possibility. Vast stretches of wonderful prairie- land rolled between the little towns which served as the centers of government for the respective counties, and so great were the distances that sev- eral days were sometimes consumed in traveling from point to point. In 1849 the Eighth Circuit included no less than fourteen counties, — Sanga- mon, Tazewell, Woodford, McLean, Logan, DeWitt, Piatt, Champaign, Vermilion, Edgar, Shelby, Moultrie, Macon and Christian, — and its dimensions were at least a hundred and ten by a hundred and forty miles. To-day there are eighteen judges doing duty in the district cov- ered by one justice in the early fifties, and it is not surprising that Lincoln's attendance on the circuit occupied him at least six months of every year. Not many lawyers devoted themselves to the work as closely as he did. Some confined their attention to a few counties, others traveled half the circuit, and others even further ; but Lin- coln was the only member of the bar who, year after year, accompanied the judge through the entire district. The custom of riding the circuit was, of course, born of necessity, for in the early days there was 167 LINCOLN THE LAWYER not sufficient legal business in any one of the small communities to support a lawyer, to say nothing of a law firm. People who wanted to begin lawsuits usually sought their advisers in the largest town in their vicinity, or waited the arrival of the circuit judge and the attend- ant bar, when they could look over the field and pick out the most available champion. Fre- quently, however, the local attorneys were re- tained to prepare the papers, with instructions to select a suitable man for the court work when the circuit-riding bar arrived on the scene. There was therefore an excellent chance of securing good business by constant attendance on the itinerant court, and the lawyer who visited all the counties was certain to be more widely known than any of his fellow-practitioners. At the time of Lincoln's second partnership with Hern- don, however, such work was more a matter of choice than necessity. Doubtless the firm could have made a satisfactory income had the senior partner devoted himself to the courts nearest his home and maintained a branch office in the dis- tant counties, as other lawyers did; but he liked the freedom of the road, and the happiest days of his life were those he passed on these long legal tours. 168 Map of Illinois The shaded portion indicates the circuit of Lincoln's law practice The Eighth Circuit, as organized under the provisions of the Illinois Session Laws of 1847, page 31, is shown by the shaded area on the above map. Later (in 1853) it was reduced to Sangamon, Logan, McLean, Woodford, Tazewell, DeWitt, Champaign, and Vermilion counties (Illinois Session Laws, 1853, page 63); and in 1857 it was further reduced to DeWitt, Logan, McLean, Champaign, and Vermilion counties (Illinois Session Laws, 1857, page 12). Even after Sangamon county was transferred to another circuit, Lincoln still continued to travel the Eighth, LINCOLN THE LAWYER Traveling the circuit was comparatively com- fortable in the fifties, but it still lacked some- thing of the luxurious, and at times it involved hardships which could be surmounted onry by the best of health and spirits. The judge and his flock usually started out from the State capital as soon as the roads admitted of travel in the early spring, and drove to the nearest county-seat on their route. At times his Honor traveled alone, but frequently some member of the bar occupied a seat in his carriage, and the other lawyers made their way to the rendezvous as best they could, three or more often clubbing together and hiring a con- veyance for the trip. Lincoln sometimes trav- eled with these small parties, but after the first year or so he maintained a horse and buggy of his own, both of which were pretty "wobbly" according to Judge Weldon, with whom they were left when their owner took to the iron steed. But Illinois railroads connected only the cen- ters of population in the early fifties, and the county-seats on the Eighth Circuit were not much more than villages. Each bore a family resemblance to the other, and all were strongly suggestive of the tyjrical New England hamlet. 170 LIFE ON THE ILLINOIS CIRCUIT The settlement almost invariably clustered around a public square of generous dimensions, in the center of which stood the court-house, a A .7: ■' i i • — HhSSi ■>-V;z~^PH^ -4' Drawn by Harry I-enn from a photograph Old court-house at Metaruora, Woodford County, Illinois Lincoln practised in this building, which is now used as a town hall substantial building of brick or stone. The square itself was guarded from the highroad by a series of wooden hitching-rails, and teams of all sorts nosed this fence from the opening to the closing of the term; for business and pleasure both demand the attendance of the whole county 171 LINCOLN THE LAWYER on court-days, and shelter for the horses and wagons was frequently unobtainable. Even the lawyers had difficulty in finding accomodations for their animals ; and as the supply of labor was extremely limited, those who traveled in private rigs often had to be their own hostlers. The stable facilities, however, were not infre- quently superior to those of the hotels. Some- times the tiny taverns which attempted to house the visitors boasted only one habitable room, and as this was invariably reserved for the judge, the lawyers not included in his hospitality had to sleep anywhere they could — on the sofas, the tables, the window-seats, the floor, and even in the lofts and horse-stalls. It was no uncommon thing for his Honor to invite three or four men to occupy his room, but the one who was selected to share Judge Davis's bed might about as well have slept on the floor, for that jurist was al- most as wide as the ordinary four-poster. Lin- coln and he made a fair average as far as width was concerned, but as the former was six feet four and had to lie crosswise to fit in the average bed, their combination was not a pronounced success. In the dining-room the tavern-keeper usually 172 LIFE ON THE ILLINOIS CIRCUIT reserved one end of the long table for the bar, and the judge was always expected to preside at the head of the board; but the function was fre- quently a Barmecide feast, and, as Lincoln Drawn by Harry Fenn from a contemporary print Original offices of Lincoln & Herndon — interior remarked, there was very little advantage in sit- ting at the head of the table unless the food improved as you moved up. Except for this dis- tinction as to place, there was no difference made between the legal fraternity and the other guests of the hotel, and litigants, witnesses, jurors, and prisoners out on bail were accommodated at the 173 LINCOLN THE LAWYER same table and enjoyed the same fare. Indeed, Mr. Whitney recalls several persons actually on trial who not only took their meals with his Honor and the bar, but also spent their evenings in the judge's room, without the slightest embar- rassment to any one. The inconvenience and discomforts of the life were at times almost unbearable, but Lincoln was never known to join in the frequent protests and complaints of his associates. Indeed, his sense of humor often saved the situation and made it tolerable, if not enjoyable, for himself and others. He saw the comic side of all that irritated men of more nervous temperament, and disposed of annoyances with a laugh so hearty and infectious that even the disgruntled victims of petty misfortunes had to join in his mirth. In an indolent, easy manner he studied the various types of human nature encountered on the road, took a direct personal interest in the people he met, and made friends at every stopping-place. All the court clerks and county officials were glad to see him come and sorry to have him depart; he had a warm welcome at every tavern door and all sorts and conditions of men claimed his close acquaintance. But, despite this general 174 LIFE ON THE ILLINOIS CIRCUIT popularity, Lincoln was not, as he has frequently been depicted, an irresponsible hail-fellow-well- met, familiarly known as "Abe," who went about slapping people on the back and encourag- ing similar salutations. Nothing could be fur- ther from the truth than this. Judge Weldon informed the writer that in all his acquaintance with Lincoln on the circuit, the only person he ever heard address him by his first name was a street urchin whose impertinence astonished the future President quite as much as it amused him, and there is no reason to believe that he courted such familiarities after he reached maturity. Cer- tainly his correspondence shows that he almost invariably addressed people by their last names — even his most intimate friends like Speed and Davis; and although Herndon relates anecdotes in which he figures as "Billie," Lincoln's letters refer to him as Herndon or William, although he was a much younger man than his partner and something of a protege. This is not at all suggestive of the arm- around-the-neck familiarity with which Lincoln is credited, and, as a matter of fact, he admitted very few friends to his confidence, and his inti- mates never numbered more than two or three. 175 LINCOLN THE LAWYER He was undoubtedly easy-going, pleasant- spoken, cordial, unconventional, and entirely ap- proachable, but he had his own distinctive barrier of dignity which no one ever surmounted. It is easy to understand the fascination of the circuit life. The members of the bar formed a bright, congenial company who strove mightily with each other in the court-rooms, but ate and drank as friends. They were persons of credit and renown in the eyes of all the assembled coun- try-side, oracles to the political gossips, and leaders of public opinion whose words were often law. Every man knew every other man, and the close, daily contact in the court-rooms and on the road created a spirit of comradeship which no mere professional interest could supply. There was little of dull routine in the life, less of cold formality, nothing of the anxieties and cares which characterize modern practice, and the "play-instinct," which few men ever entirely out- grow, was strongly in evidence at every term of court. One group of the merry company founded a mock tribunal which formulated all sorts of ridiculous charges against their fellow-prac- titioners and tried the offenders with burlesque pomp and severity, to the delight of all beholders. 176 LIFE ON THE ILLINOIS CIRCUIT Others were good at song and story, and many of the evenings passed in the judge's private room were all-night sessions of mirth and good-fellow- ship which made for lasting friendship and an esprit de corps destined to have a marked effect upon more than one career. The whole atmosphere of the profession favored individuality, self-ex- pression, and development, and Lincoln re- sponded to all these encouraging influences. He was distinctly a human product, and his growth of mind and character was most happily fostered by the free life of the circuit, where he was in close touch with a vigorous, independent, unarti- ficial people drawn from every part and class of the country and all representatively American. Theirs was the force which really molded the man at the formative period of his career, and the most important individual influence on his future may be fairly ascribed to the judge before whom he practised and with whom he virtually lived for ten successive years. 177 XVII JUDGE DAVIS AND LINCOLN JUDGE DAVID DAVIS was a lawyer of marked ability and strong individuality, a shrewd business man, a loyal friend, a violent partizan of generous impulses and deep-rooted prejudices, an arbitrary and even despotic ruler of his own domain, but a fearless administrator of the law and an absolutely honest and capable judge. He and Lincoln had met as lawyers in Springfield, but there does not appear to have been any intimacy between them until Lincoln resumed practice at the close of his congressional term, when their acquaintance speedily devel- oped into a friendship of enduring quality and historic importance. The relations of the bench and bar were neces- sarily much closer in the early fifties than they are to-day, and the lawyers of the Eighth Cir- cuit were practically a big family of which 178 Hon. David Davis Judge of old 8th Illinois Circuit. Later an Associate Justice of the Supreme Court of the United States JUDGE DAVIS AND LINCOLN Davis was the official head, and over which he exerted a really parental influence. Not only did his Honor's ample girth and other physical proportions suggest a paterfamilias, but his mental attitude toward the bar was at once dom- ineering and fatherly, with the domineering ele- ment always prominent. "He used to remind me of a big schoolmaster with a lot of little boys at his heels whenever I saw him stumping toward the court-house," remarks a now distinguished lawyer, and it cannot be denied that there was a good deal of the pedagogue about the judge. Certainly he knew how to maintain order in his court, but there was always more tact than sever- ity in his enforcement of discipline. "Mr. Sher- iff, you will see that nobody except General Lin- der is allowed to smoke in my court," was his method of administering a rebuke to the Attor- ney-General of Illinois, and hints of this kind seldom went astray. But though he insisted upon maintaining the dignity of his office upon every proper occasion, he dispensed with all unnecessary etiquelie, and outside the court- room he was democratic to the last degree. Almost every man, woman, and child in the fourteen counties of his circuit knew Judge 181 LINCOLN THE LAWYER Davis, and he undoubtedly was personally acquainted with a greater number of the resi- dents than any other one man in the district. It naturally followed that he knew the jurors who were selected by the sheriff, and in some counties the same men composed the jury term after term. They were his friends, but the idea that they would be subservient to his wishes on this account, or that he would attempt to take advan- tage of their friendship to impose his author- ity upon them, never, apparently, entered any one's head. On the contrary, he relied on the intelligence, fairness, and integrity of the tales- men to a far greater extent than is practical in modern courts; but if there was the slightest cause for suspecting that a litigant would not receive an impartial verdict at their hands, he promptly removed the case into another circuit, and he governed himself by the same strict rules which he applied to the juries. In the minutes of the court in Tazewell County the writer dis- covered a significant entry, evidently in Davis's handwriting, written opposite the case of Hall v. Woodward, reading somewhat as follows: "Jury disagreed. Venue changed on account of the prejudice of the judge." 182 JUDGE DAVIS AND LINCOLN But though he was impartial in all his official duties, his Honor was a man of strong likes and dislikes, and he took no pains to conceal his feel- ings toward the different members of the bar. Lincoln, Leonard Swett, Judge Logan, and a few others continually basked in the sunshine of his approval; but Lincoln was the prime favorite of the privileged clique which made the judge's room its headquarters, and almost from the first he was distinguished at every possible oppor- tunity in a way which would have been fatal to the average man. More than one of the judge's coterie has testified that his Honor would brook no interruption of the conversation when Lincoln had the floor; and if his favorite happened to be absent, he took but little interest or enjoyment in the rest of the company which gathered at his rooms. "Where 's Lincoln?" he would inquire irritably. "Here, somebody, go and tell Lincoln to come here." Under such circumstances it is nothing short of remarkable that the man was not loathed instead of loved by the rank and file of the pro- fession. He was naturally unassuming, but until he came into contact with Judge Davis he had never been placed in a position 11 183 LINCOLN THE LAWYER of much power. Davis, however, recognized the masterly quality of his mind, and his views and arguments soon began to have more weight and influence with the court than those of any other member of the bar. His Honor had too much individuality and independence actually to defer to any one else's opinion, but his favorite always had the ear of the court, and this in itself gave him a commandingly important position. "It is easy for the weak to be gentle," writes a distinguished student of human nature. "Most people can bear adversity. But if you wish to know what a man really is, give him power. That is the supreme test." No one but an experienced lawyer can appre- ciate the immense power wielded by the advocate on whom the bench relies. The mere fact that he has the private ear of the court is, in itself, a temptation which has proved too much for more than one distinguished member of the bar; and though the judge be never so honest and impar- tial, there are countless forms in which the per- sonal equation may be invoked. The average practitioner who occupies this post of vantage seldom makes any effort to guard himself against a misuse of his opportunities. He does 184 JUDGE DAVIS AND LINCOLN not hesitate to arrogate to himself small licenses which he knows will not be denied ; he crowds and overbears adversaries less fortunately situated, and generally asserts himself at their expense. Every court-room in the world harbors these privi- leged bullies. Not all of them, of course, make a brutal display of their powers. Many are extremely subtle in bringing the necessary pres- sure to bear, and some are mentally so consti- tuted that they are not conscious of exerting any offensive influence against their fellow-practi- tioners. But in ninety-nine cases out of a hun- dred the leaders of the bar yield to temptations which Lincoln resisted, and few have ever been tested as he was. Yet he worked in an atmos- phere of this sort for ten years, schooling him- self against the open favor of the court; and of such training and temptations there came to the nation's guidance a master of infinite tact. Not only did he refrain from imposing him- self upon his contemporaries, but younger mem- bers of the profession received every possible consideration at his hands. It is the universal testimony of those who met him in daily practice that he never wantonly sought to exalt himself at the expense of a fellow-practitioner, and his ju- 185 LINCOLN THE LAWYER niors constantly retained him to aid them in cases, without the slightest fear that he would attempt to overshadow them, take the credit for vic- tory, or shelve responsibility for a defeat. "The first case I ever had in Tazewell County was the People v. Gideon Hawley," remarked Mr. James Haines 1 while talking with the writer. "There were thirty-two indictments against my client for obstructing a public road, and as the authorities were inclined to make an example, the case was somewhat serious. I retained Mr. Lin- coln to conduct the defense, and after we had completed our preparations he said, 'Of course you will make the opening speech.' I was sur- prised, for I had supposed that he would want to assume full control, and I said as much, adding that I would prefer him to take the lead. 'No,' he answered; and then laying a hand on my shoulder, he continued: 'I want you to open the case, and when you are doing it talk to the jury as though your client's fate depends on every word you utter. Forget that you have any one to fall back upon, and you will do justice to yourself and your client.' I have never forgot- i Mr. Haines Is now living in Pekin, Tazewell County, and the court-house, which is still standing in that county, and in which Mr. Lincoln practised, was erected under his supervision. 186 JUDGE DAVIS AND LINCOLN ten the kind, gentle, and tactful manner in which he spoke those words," Mr. Haines continued; "and that is a fair sample of the way he treated younger members of the bar." Court-room, Tazewell Co., Illinois, in which Lincoln practised and / / which is still used for sessions of the circuit court This, with other testimony of a similar nature, shows the man in the making; and no one who is familiar with Lincoln's subsequent conduct as Commander-in-chief of the army can fail to recognize the bearing of his professional training upon his official actions. Again and again he assumed all responsibility for the blunders of his 187 LINCOLN THE LAWYER generals, and it will be remembered that when Grant succeeded he instantly wrote him, not only disclaiming any share of the credit, but acknowl- edging that the executive had doubted the wis- dom of his plans. Judge Davis's confidence in Lincoln's ability was evidenced at all times, but it often took a form which must appear nothing less than amaz- ing to the modern practitioner, for he frequently assigned Lincoln to the bench and left him to conduct the court in his absence. There has been considerable doubt expressed by some biographers as to whether or no Lincoln did actually preside in a judiciary capacity, but there is not the slightest question about the matter. Judge Weldon informed the writer that he personally tried a jury case with Lincoln on the bench, and Mr. Whitney asserts that the future President once conducted an entire term of court in Champaign County. Moreover, there is in existence to-day a judgment in Lincoln's handwriting which was written by him in a case in which he presided as the trial judge. This practice was, of course, irregular, and it is said that two cases were reversed by the Supreme Court because of it; but Judge Weldon told the writer that Lincoln 188 JUDGE DAVIS AND LINCOLN never presided at a trial unless the attorneys for both parties consented, and that they were gen- erally glad to do so, for in this way delays were Drawn by Harry Fenn from a photograph Old court-house at Pekin, Tazewell County, Illinois Lincoln practised in this building which is well preserved and the sessions of the Circuit Court are still held in it avoided and the clients and witnesses accommo- dated when Davis was unable to hold court. The unofficial character of the position, how- ever, made great demands upon Lincoln's tact, and he had to display rare judgment in exercis- 189 LINCOLN THE LAWYER ing his authority. On one such occasion some young attorneys attempted to embarrass him with technical devices in a case in which there was no real defense. Lincoln heard them with the utmost good-nature and patience, and finally, when they had kept up their tactics for a whole day, he gave a decision in favor of the plaintiff, and wrote the direction for judgment in such form that there was no possible chance for an appeal. "But how are we to get this up to the Supreme Court?" asked one of the attorneys when he found himself cornered. "Well, you 've all been so smart about this case," answered Lin- coln, calmly, "that you can find out for your- selves how to carry it up"; and that ended the matter. Lincoln's earnestness and sense of responsi- bility deepened as he found himself relied upon as a leader of the bar; and as the years went by he grew more and more grave, meditative, and given to mental abstraction. "He would frequently lapse into reverie and remain lost in thought long after the rest of us had retired for the night," Judge Weldon told the writer; "and more than once I remember waking up early in the morning to find him sit- 190 JUDGE DAVIS AND LINCOLN ting before the fire, his mind apparently concen- trated on some subject, and with the saddest ex- pression I have ever seen in a human being's eyes." From the collection of Major William H. Lambert Facsimile of a judgment written by Mr. Lincoln while acting in the place of Judge Davis No one knows with what thoughts Lincoln was struggling in those hours, but this side of his character has almost disappeared under the mass of silly stories which are coupled with his name. One would think, to read some of the bio- graphies, that he never had a serious moment, 191 LINCOLN THE LAWYER and that most of his life on the circuit was spent in retailing dubious stories to gaping circles of country-folk at wayside taverns. Indeed, one chronicler states that he was frequently pitted against the local champion raconteurs in story- telling tournaments which continued for days, but which never could have lasted long enough to furnish all the pointless jests which seek to illustrate his fame as a fun-maker. Lincoln was a wit, and, as Ingersoll said, he used any word "which wit could disinfect," but his reputation has suffered at the hands of writ- ers who have employed stories as stop-gaps in their information. Of course, it is far easier and more amusing to attribute a lively story to Lin- coln than to give a true picture of the man; but the compilations which have been evolved on this principle, and which picture his life on the cir- cuit as a round of story-telling, are made out of whole cloth — some of which is stolen goods. "Nothing can be more absurd than to picture Lincoln as a combination of buffoon and drum- mer," protested one of his surviving contem- poraries while discussing this subject with the writer. "He was frequently the life of our little company, keeping us good-natured, making us 192 JUDGE DAVIS AND LINCOLN see the funny side of things, and generally enter- taining us; but to create the impression that the circuit was a circus of which Lincoln was the clown is ridiculous. He was a lawyer engaged in serious and dignified work, and a man who felt his responsibility keenly." Probably there is no one living who is better entitled to speak on this subject than Mr. James Ewing, a member of the Illinois bar, whose father kept the old National Hotel in Blooming- ton, where all the lawyers used to stop while on the circuit, and at whose house Lincoln boarded after the hotel was closed. Mr. Ewing was about nine years old when Lincoln first stayed at the National, and for six or seven years after- ward he saw and heard him in the company of his associates almost every term of court. "In all my experience," Mr. Ewing informed the writer, "I never heard Mr. Lincoln tell a story for its own sake or simply to raise a laugh. He used stories to illustrate a point, but the idea that he sat around and matched yarns like a commer- cial traveler is utterly false. I never knew him to do such a thing, and I had ample opportunity for noting him." "Lincoln would soon have become a bore if he 193 LINCOLN THE LAWYER had traded on his story-telling gifts," remarked another authority. "He traveled with the same men day after day, week after week, and month after month. Even if his fund of anecdotes could have stood the strain, we should not have been able to endure it, for no man exhausts him- self or others so quickly as your professional funny man." But those who have depicted Lincoln on the circuit as a sort of end-man with an itinerant minstrel show, have also done a similar injustice to Davis. More than one scissors-and-paste-pot biographer encourages the inference that it was Davis's partiality for broad stories which caused him to distinguish Lincoln, and we are expected to believe that this was the edifying origin of the friendship of these two distinguished men. 1 Undoubtedly Davis enjoyed a good story, and it may well be conceded that his laugh was as loud and infect- ious as tradition says it was; but to suppose that i Judge Davis, who was three times elected to the Illinois Cir- cuit Bench (1848, 1855, and 18G1), was appointed an associate justice of the Supreme Court of the United States in 1862, and served on that bench with distinction until 1877, when he resigned to become a United States senator from Illinois. He became acting vice-president in 1881, and resigned in 1883. He died at Bloomington, Illinois, June 26, 1886. 194 JUDGE DAVIS AND LINCOLN a man of his ability would select a mere jester for a friend, or that Lincoln would have con- sented to serve as a court fool, is preposterous. Davis had precisely the mental qualities which were best adapted to encourage and develop a man of Lincoln's temperament. He recognized his great ability, admired his modesty, respected his integrity, esteemed his judgment, and helped to school his legal aptitude. He knew the power of the man — knew it through ten years' associa- tion with him in the court-room; and it was this knowledge, gained in this way, which formu- lated his unconquerable belief in the Illinois can- didate for the Presidential nomination. It was Judge Davis and a handful of men who had learned to know and appreciate Lincoln as a lawyer— a small group of his fellow -practi- tioners on the Eighth Circuit: Davis, the judge; Swett, the advocate; and Logan, the leader of the bar, but especially Davis— who forced Lin- coln upon the Chicago Convention in 1860, and thus gave him to the nation. 195 XVIII LEADER OF THE BAR LINCOLN did not return to any assured clientage at the close of his congressional term, and he had his professional reputation still to make when he began to follow Judge Davis over the circuit. He had had a fairly wide acquaintance in the community before he went to Washington, but the State was rapidly increasing in population, and to the newcomers he was, of course, an utter stranger. Even to the majority of the old inhabitants, he was better known as a stump-speaker and politician than as a lawyer; and, recognizing this, he set to work with a single- ness of purpose which had not previously charac- terized his interest in the law. We have his own word for it that he had then definitely deter- mined to abandon public life, and his most inti- mate professional associates testify to a marked change in his attitude toward his work from this time on. Thenceforward he bent all his energies 196 LEADER OF THE BAR upon equipping himself for his legal duties, pre- paring his cases with greater care, fortifying himself with reading, and generally becoming more systematic in his studies. It was probably at this time that he began entering notes of cases and authorities in a memorandum-book which he carried with him on the circuit, and which pro- vided him with a ready reference at moments when it was not possible to procure law reports or text-books. 1 His preparation, however, did not stop at legal learning. He began the study of the German language, and was interested in any- thing which could develop his mind, and he did not abandon any subject once he touched upon it. "In the course of my reading," he told a friend years afterward, "I constantly came across the word 'demonstrate.' I thought at first that I understood its meaning, but soon became satis- fied that I did not. I consulted Webster's dic- tionary. That told me of certain proof beyond the probability of doubt, but I could form no idea of what sort of proof that was. I consulted all the books of reference I could find, but with i This memorandum-book is now in the possession of Mr. Jesse W. Weik, through whose courtesy the writer was allowed to ex- amine its copious citations and notes. 197 LINCOLN THE LAWYER no better results. You might as well have defined blue to a blind man. At last I said to myself, 'Lincoln, you can never make a lawyer if you do not know what "demonstrate" means,' and so I worked until I could give any proposi- tion of the six books of Euclid at sight. I then found out what 'demonstrate' meant." This study was performed at odd intervals while he was engaged in trial work on the circuit, and Herndon reports that he frequently saw Lincoln poring over his Euclid by candle-light at night in his bedroom, where three or four other men were sleeping after a hard day's work in the courts. It was discipline of this quality which developed and strengthened the man's mind at his most critical period, and his growth as a law- yer followed as a natural result, though he him- self never made the slightest claim to legal emi- nence. "I am only a mast- fed lawyer," he once protested, meaning that his mind had not been nourished with the sort of educational provender which rounds out the ribs of aptitude, and this recognition of his deficiencies redoubled his efforts. At one time he had apparently thought that his ability as a speaker would carry him through, but doubtless his experience with 198 LEADER OF THE BAR Logan and other able lawyers taught him to mis- trust his powers in this respect, and his advice to some law students, written in July, 1850, shows his altered attitude. "Extemporaneous speaking should be practised and cultivated" he remarked. "It is the lawyer's avenue to the public. How- ever able and faithful he may be in other respects , people are slow to bring him business if he can- not make a speech. And yet there is not a more fatal error than relying too much on speech-mak- ing. If any one, upon his rare powers of speak- ing, shall claim an exemption from the drudgery of the law, his case is a failure in advance." But even with close application to business and the unmistakable favor of the court, Lincoln did not rise to any immediate recognition at the bar. His ability was of slow growth, and there was nothing showy or impressive about his practice in the courts. Little by little, however, it began to dawn upon the local public that he was the most uniformly effective man of all those who practised on the circuit, not only with the court, but with the juries; but it was the lawyers who first evidenced the discovery by retaining him to try cases for them. The confidence and appreciation of his com- 12 199 LINCOLN THE LAWYER petitors is the highest compliment which any law- yer can receive, and it was this professional recognition which largely determined Lincoln's subsequent career, for it enabled him to leave all the minutiae of practice and the drudgery of preparation to other lawyers and to devote him- self almost exclusively to trial work. The result was that, although he had probably a wider acquaintance than any other practitioner on the circuit, he had comparatively few personal clients, most of his business coming through other attor- neys, who either retained him of their own initia- tive or at the suggestion of the litigants. Indeed, his reputation as an advocate became such that some attorneys advertised themselves as his part- ners ; but this merely meant that they usually re- tained him to try their cases, or possibly that they had some general understanding with him that he would act as counsel for them during certain terms of court or in particular counties. It thus frequently happened that Lincoln knew nothing of either his cause or his client until he arrived at the county-seat where the trial was to be held, and as a term of court seldom lasted more than a few days, he had very little opportunity to pre- pare himself. • 200 LEADER OF THE BAR If the local attorney who retained him had an office, he made that his headquarters; but, if, as often happened, there was no such accommoda- tion available, the necessary consultations took place in the tavern, usually in the judge's private room, and regardless of his Honor's presence. Frequently, however, the conference was held out of doors to avoid interruptions, and it was no uncommon thing for Lincoln to be seen seated on the ground under the shade of some conve- nient tree in the court-house square, consulting with his associates, their clients and witnesses. Of course important litigations were not pre- pared in this haphazard fashion, but very few lawsuits in those days were complicated, and both sides usually wanted a prompt trial of the mat- ter in dispute. This class of work naturally brought Lincoln into close touch with all sorts of men and women, and trained him to be a quick and unerring judge of character. Each case was a distinct problem replete with human nature, and it was doubtless this constant insight into the springs and sources of human action which developed his instinctive understanding of the people and taught him to anticipate and lead popular opin- 201 LINCOLN THE LAWYER ion as no other public man in this country had ever done. It is probable that Lincoln tried more cases between 1849 and 1860 than any other man on the Eighth Circuit. He was the acknowledged leader of the local bar, whose services were con- stantly in demand, and the one man who could be relied upon to take a case in any of the coun- ties comprising the circuit, for he alone covered the entire route. It is misleading to belittle the value of this daily experience on the ground that most of the litigations were of no great mone- tary importance. Every lawyer familiar with trial work knows that small cases often raise more difficult questions of law and demand nicer knowledge of legal principles than causes on which millions depend; and it should also be remembered that many of the small suits were, in effect, test cases which settled the law for the new State. Of course no one could have practised before the court and juries day after day and year after year in this way without learning something, and Lincoln's legal development was marked with every year of his practice. In 1853 the Illinois Central Railroad retained him as its counsel, and 202 :!'■■'■■' '■;''• . ."■ I-rom a photograph Portrait of Lincoln LEADER OF THE BAR not long afterward he appeared for the Rock Island Road and many other important represen- tative interests, and his record of appeal cases in the Supreme Court is equalled by but few members of the Illinois bar. It is impossible to overestimate the value of these active professional years on Lincoln's sub- sequent career. They brought him into close contact and collision with able lawyers of every caliber, with men of force and strong character, men whose business it was to reason, persuade, cajole, and intimidate others to their way of thinking, and who employed every de- vice, from legitimate argument to brutal ter- rorizing, to accomplish their ends. The most capable layman is no match for the trained attorney in an argument, and a man who is fami- liar with the law can often silence and overawe an intellectual superior who is not armed with similar knowledge. Every lawyer of experience has seen business men of courage and conviction hesitate, vacillate, and practically disintegrate under legal menace and coercion ; and all readers of the history of this country know that more than one occupant of the White House, armed with authority, but unskilled in the ways of the 205 LINCOLN THE LAWYER law, has been cowed into practical abdication by tactics familiar to all frequenters of the courts. Lincoln's daily antagonists were such men as Logan, Stuart, Baker, Browning, Oglesby, Swett, Scott, Cullom, and Palmer — men, drawn from all parts of the country, who later distin- guished themselves as judges, congressmen, senators, or governors of States; and besides these and others of equal brilliancy, he met dif- ferent types and grades of the profession well qualified to prepare him for the great cause which was soon to be entrusted to his care. Long before he was called to Washington, his daily life in the courts had familiarized him with the roarers and bulldozers of the profession, with the sly and tricky gentry who work by indi- rection, with the untrustworthy, treacherous, and unscrupulous practitioner, with the broad- minded advocate and the narrow, bigoted parti- zan. Years before he encountered them in his cab- inet, he had met such men as Stanton and Seward and Chase; and where a man of less experience or other training would have quarreled with them or been himself torn apart in their struggles for supremacy, he handled them with the sure touch 206 LEADER OF THE BAR of command and made them work together for the nation. Stanton utterly failed to take Lin- coln's measure in the McCormick reaper case (hereafter referred to) but Lincoln took his, and years afterward, when the great war secretary attempted to bulldoze the administration, the patient Executive stood unmoved by his roaring and employed his fanatical egotism to the best possible advantage. Chase played for the Presi- dency on the Cabinet board, thinking his masked moves would escape the indolent attention of the "mast-fed lawyer," and suddenly found himself checked and manoeuvered into a speedy resigna- tion; and history has disclosed the fact that Seward, one of the most distinguished members of the New York bar, unwittingly received more than one lesson in law at the hands of the tactful Executive. 207 XIX THE JURY LAWYER TT is conceded by all his contemporaries that -1 Lincoln was the best all-round jury lawyer of his day in Illinois. Undoubtedly his know- ledge of human nature played an important part in his success. He possessed another quality, however, which is almost, if not quite, as essential in jury work, and that is clearness and simplicity of statement. It will be remembered that in his Sangamon River argument— his first boyish attempt at pleading a case — he had displayed unusual ability in presenting his facts, and with age and ex- perience he developed a perfect genius for state- ment. His logical mind marshaled facts in such orderly sequence, and he interpreted them in such simple language, that a child could follow him through the most complicated cause, and his mere recital of the issues had the force of argument. Many people suppose that there is only one 208 THE JURY LAWYER way of telling the truth, and that, given honesty, no art is required to make a frank and fair state- ment of matters in dispute ; but this is a popular delusion. "A truth which is badly put," says Mr. Wells in his "Mankind in the Making," "is not a truth, but an infertile, hybrid lie," and every lawyer of experience knows that not one man in a thousand can make facts speak for themselves. Certainly the average practitioner does not master his material. He is controlled by it, and presents his cause in such a manner as to ne- cessitate contradiction, invite confusion, or chal- lenge belief. He has neither the confidence nor the skill to state the truth, the whole truth, and nothing but the truth, and his omissions and per- versions naturally reflect on his honesty or sin- cerity. Lincoln, on the contrary, relied on truth, knew how to tell it, and "with perfect sincerity often deceived the deceitful." "A stranger going into a court when he was trying a case," says Mr. Arnold, one of his constant associates, "would after a few minutes find himself instinctively on Lincoln's side and wishing him success." This lucidity of expression, persuasive clarity, and convincing simplicity is, of course, the dis- 209 LINCOLN THE LAWYER tinctive mark of Lincoln's literary style, in so far as his writing can be said to have a style ; and of this habit, nurtured and matured in the court- room, came some of the ablest state papers ever drawn by an American, and some of the acknow- ledged masterpieces of English prose. Lincoln not only spoke a language which jurors could understand, but he also took them into his confidence and made them feel, as one of his contemporaries says, that he and they were trying the case together. He was likewise con- tinually the friend of the court who thought it "would be only fair" to let in this, or "only right that that should be conceded," and who "reck- oned he must be wrong," when the court over- ruled him, but who, nevertheless, took a quiet and tactful exception whenever the occasion re- quired it. "Now about the time he had practised through three quarters of the case in this way," observes Leonard Swett, "his adversary would wake up to find himself beaten. He was as wise as a serpent in the trial of a case, and what he so blandly gave away was only what he could n't get and keep." 210 THE JURY LAWYER Of course these comments were merely in- tended to emphasize the fact that Lincoln did not try both sides of his cases, as some of his eulogists would have us believe; but unfortu- nately they have been distorted into an implica- tion that he indulged in tricks of the trade, and that his apparent fairness was nothing better than a device by which he lured the unwary to destruction. Mr. E. M. Prince, who is now living in Bloom- ington, Illinois, and who heard Lincoln try over a hundred cases of all sorts, is a competent authority on any question of this kind, and his testimony is direct and convincing. "The truth is," Mr. Prince remarked while talking with the writer, "that Mr. Lincoln had a genius for seeing the real point in a case at once, and aiming stead- ily at it from the beginning of a trial to the end. The issue in most cases lies in very narrow com- pass, and the really great lawyer disregards every- thing not directly tending to that issue. The me- diocre advocate is apt to miss the crucial point in his case and is easily diverted with minor matters, and when his eyes are opened he is usually angry and always surprised. Mr. Lincoln instinctively 211 LINCOLN THE LAWYER saw the kernel of every case at the outset, never lost sight of it, and never let it escape the jury. That was the only trick I ever saw him play." But the best possible proof that Mr. Lincoln was an unusually fair practitioner and generous opponent is the fact that he made no enemies in the ranks of his profession during all his active and varied career. Forbearance is often mistaken for timidity, and tact for weakness, and it not infrequently happened that Lincoln's profes- sional opponents misinterpreted his attitude to- ward them; but they were always speedily dis- illusioned. Mr. Swett remarked that "any one who took Lincoln for a simple-minded man [in the court-room] would very soon wake up on his back in a ditch" ; and although he seldom resorted to tongue-lashing, and rarely displayed anger, there is abundant evidence that no one ever attacked him with impunity. Judge Weldon told the writer that on one occasion a lawyer challenged a juror because of his personal ac- quaintance with Mr. Lincoln, who appeared for the other side. Such an objection was regarded as more or less a reflection upon the honor of an attorney in those days, and Judge Davis, who was presiding at the time, promptly overruled the 212 Leonard Swett THE JURY LAWYER challenge ; but when Lincoln rose to examine the jury he gravely followed his adversary's lead and began to ask the talesmen whether they were acquainted with his opponent. After two or three had answered in the affirmative, however, his Honor interfered. "Now, Mr. Lincoln," he observed severely, "you are wasting time. The mere fact that a juror knows your opponent does not disqualify him." "No, your Honor," responded Lincoln, dryly. "But I am afraid some of the gentlemen may not know him, which would place me at a dis- advantage." A successful jury lawyer must needs be some- thing of an actor at times, and during his ap- prentice years Lincoln displayed no little histrionic ability in his passionate appeals to the juries. Indeed, his notes in the Wright case show that he occasionally reverted to first prin- ciples even after he had reached the age of dis- cretion. This case was brought on behalf of the widow of a Revolutionary War soldier whose pension had been cut in two by a rapacious agent, who appropriated half of the sum collected for his alleged services. The facts aroused Lincoln's 215 LINCOLN THE LAWYER indignation, and his memorandum for summing up to the jury ran as follows: "No contract. Not professional services. Unreasonable charge. Money retained by defendant— not given by plaintiff. Revolutionary War. Describe Valley Forge privations. Ice. Soldiers' bleeding feet. Plaintiff's husband. Soldier leaving home for army. Skin defendant. Close." Mr. Herndon, who quotes this memorandum, testifies that the soldiers' bleeding feet and other pathetic properties w T ere handled very effectively, and that the defendant was skinned to the entire satisfaction of the jury. It was only occasionally, however, that Lincoln indulged in fervid oratory, and his advice to Herndon shows his belief in simplicity and reserve. "Don't shoot too high," Herndon reports him as saying. "Aim lower, and the common people will understand you. They are the ones you want to reach— at least they are the ones you ought to reach. The educated and refined people will un- derstand you, anyway. If you aim too high, your ideas will go over the heads of the masses and only hit those who need no hitting." To interest the jurors and make them under- stand is, of course, the chief endeavor of every 216 THE JURY LAWYER jury advocate, and Lincoln constantly employed his great gifts as a story-teller to illustrate, sim- plify, and reinforce his arguments, which is an- other proof that he did not waste this valuable ammunition on tavern loiterers. Stories are more interesting than logic and far more effective with the average audience, and Lincoln's juries usually heard something from him in the way of an apt comparison or illustration which im- pressed his point upon their minds. On one occasion when he was defending a case of assault and battery it was proved that the plaintiff had been the aggressor, but the op- posing counsel argued that the defendant might have protected himself without inflicting injuries on his assailant. "That reminds me of the man who was at- tacked by a farmer's dog, which he killed with a pitchfork," commented Lincoln. "'What made you kill my dog?' demanded the farmer. " 'What made him try to bite me?' retorted the offender. " 'But why did n't you go at him with the other end of your pitchfork?' persisted the farmer. 217 LINCOLN THE LAWYER "'Well, why did n't he come at me with his other end?' was the retort." Lincoln not only made effective use of stories with the jury, but frequently employed them in arguing to the court, and he once completely refuted a contention that custom makes law with an anecdote drawn from his own experience. "Old Squire Bagley from Menard," he began, "once came into my office and said, 'Lincoln, I want your advice as a lawyer. Has a man what 's been elected a justice of the peace a right to issue a marriage license?' I told him he had not. 'Lincoln, I thought you was a lawyer,' he re- torted. 'Bob Thomas and me had a bet on this thing, and we agreed to let you decide it; but if thet is your opinion, I don't want it, for I know a thunderin' sight better. I 've been Squire now eight years, and I J ve done it all the time!'' Even the attorney whose argument for custom was thus answered must have smiled at this good- natured disposal of his claims, and Lincoln's humor generally freed his criticisms of all of- fense. "He can compress the most words into the smallest ideas of any man I ever met," was, perhaps, the severest retort he ever uttered; but 218 THE JURY LAWYER history has considerately sheltered the identity of the victim. Wit and ridicule were Lincoln's weapons of offense and defense, and he probably laughed more jury cases out of court than any other man who practised at the bar. "I once heard Mr. Lincoln defend a man in Bloomington against a charge of passing coun- terfeit money," Vice-President Stevenson told the writer. "There was a pretty clear case against the accused, but when the chief witness for the people took the stand, he stated that his name was J. Parker Green, and Lincoln reverted to this the moment he rose to cross-examine. Why J. Parker Green? . . . What did the J. stand for? . . . John? . . . Well, why did nt the witness call himself John P. Green? . . . That was his name, was nt it? . . . Well, what was the reason he did not wish to be known by his right name? . . . Did J. Parker Green have anything to conceal; and if not, why did J. Parker Green part his name in that way? And so on. Of course the whole examination was farcical," Mr. Stevenson con- tinued, "but there was something irresistibly 13 219 LINCOLN THE LAWYER funny in the varying tones and inflections of Mr. Lincoln's voice as he rang the changes upon the man's name; and at the recess the very boys in the street took it up as a slogan and shouted 'J. Parker Green!' all over the town. Moreover, there was something in Lincoln's way of in- toning his questions which made me suspicious of the witness, and to this day I have never been able to rid my mind of the absurd impression that there was something not quite right about J. Parker Green. It was all nonsense, of course; but the jury must have been affected as I was, for Green was discredited and the defendant went free." 220 XX THE CROSS-EXAMINER THERE were no official shorthand writers in the courts while Lincoln practised, 1 and the lawyers took their own notes of the testimony during the trial; and these, together with such memoranda as the judge entered on his minutes, formed the data for the record. Lincoln him- self, however, rarely took any notes, claiming that it distracted his attention ; and as his memory was excellent and his reputation for honesty well established, he experienced no difficulty in sup- porting his version of what happened at the trial when the records were necessary for the appellate courts. 2 J The Hon. Robert R. Hitt, the distinguished representative from Illinois in Congress, advised the writer that "in 1858, at the time of the Lincoln-Douglas debates, I knew of no other shorthand writer residing in Illinois. There were no court shorthand writers or official stenographers in the State, and no provision of law for anything of the kind." 2 In making up an appellate record in those days, each lawyer stated the substance of what he thought the testimony had been, and the judge supplemented or corrected the two versions and certified the result to the higher court. 221 LINCOLN THE LAWYER None of the bar ever attempted, however, to secure a verbatim report of the questions and an- swers, and therefore it is impossible to obtain any official illustrations of Lincoln's methods of handling witnesses. There is abundant proof, nevertheless, of his skill in this particular, and it is conceded by all his contemporaries that as a cross-examiner he had no equal at the bar. "In the trial of a case he moved cautiously," said Judge Weldon, "and never examined or cross-examined witnesses to the detriment of his own side. If the witness told the truth, he was safe from his attacks ; but woe betide the unlucky or dishonest individual who suppressed the truth or colored it." Another of his associates testifies that he would not tolerate the evasions of his own wit- nesses when they were being questioned by his opponents, and more than once he openly re- proved his own clients for dodging and sulking in the witness-chair. "He was a great cross-examiner," Mr. James Ewing remarked to the writer, "in that he never asked an unnecessary question. He knew when and where to stop with a witness, and when a man has learned that he is entitled to take rank as an expert questioner." 222 o a- r s = X o 3 p 3 re £- - = | -ri B po «< ' ' I ? a £ o 2" o fr s < 3 2 B3 o a » o - r a o c-r '< to & o TO p -! -! - TO 73 e =• 3 t S o o THE CROSS-EXAMINER "I shall never forget my experience with him," observed Mr. James Hoblit of Logan County, Illinois, one of the few men now living who ever faced him in the witness-chair. "I was sub- poenaed in a case brought by one Paullin against my uncle, and I knew too much about the matter in dispute for my uncle's good. The case was not of vital importance, but it seemed very serious to me, for I was a mere boy at the time. Mr. Paullin had owned a bull which was continually raiding his neighbor's corn, and one day my uncle ordered his boys to drive the animal out of his fields, and not to use it too gently, either. Well, the boys obeyed the orders only too liter- ally, for one of them harpooned the bull with a pitchfork, injuring it permanently, and I saw enough of the occurrence to make me a danger- ous witness. "The result was that Paullin sued my uncle, the bovs were indicted for malicious mischief, Mr. Lincoln was retained by the plaintiff, who was determined to make an example of some- body, and I was subpoenaed as a witness. My testimony was, of course, of the highest possible importance, because the plaintiff could n't make my cousins testify, and I had every reason to want 225 LINCOLN THE LAWYER to forget what I had seen, and though pretty frightened, I determined, when I took the stand, to say as little as possible. Well, as soon as I told Mr. Lincoln my full name he became very much interested, asking me if I was n't some relative of his old friend John Hoblit who kept the half- way house between Springfield and Blooming- ton ; and when I answered that he was my grand- father, Mr. Lincoln grew very friendly, plying me with all sorts of questions about family mat- ters, which put me completely at my ease, and before I knew what was happening, I had for- gotten to be hostile and he had the whole story. After the trial he met me outside the court-room and stopped to tell me that he knew I had n't wanted to say anything against my people, but that though he sympathized with me, I had acted rightly and no one could criticize me for what I had done. The whole matter was afterward ad- justed, but I never forgot his friendly and en- couraging words at a time when I needed sym- pathy and consolation." Cross-examination makes greater demands upon a lawyer than any other phase of trial work, and it has been rightly termed an art. To suc- ceed in it the practitioner must be versed in the 226 THE CROSS-EXAMINER rules of evidence ; he must be familiar with all the facts in his case, and keep them continually in his mind ; he must think logically, be far-sighted, tactful, and a keen judge of human nature. All these qualities Lincoln possessed to an unusual degree, and, in addition, he exerted a remarkable personal influence upon every one with whom he came into contact. Men who were openly op- posed to him became fascinated when they met him, and few ever retained their hostility. This result was effected without any seeming effort on his part, and Lincoln was singularly free from all the arts and graces, natural or cultivated, which are usually associated with personal charm. He was direct, simple, and unaffectedly frank, and the conclusion is irresistible that he was en- dowed with psychic qualities of extraordinary power. Nothing except this can properly explain his wonderful control of witnesses and juries, and every experienced lawyer knows that strong individuality, commanding presence, and per- sonal magnetism are essential factors in the equipment of all great cross-examiners. More than one man has described the effect of Lin- coln's eyes by saying that they appeared to look directly through whatever he concentrated his 227 LINCOLN THE LAWYER gaze upon, and it is well known that during his frequent fits of abstraction he became absolutely oblivious to the bustle and confusion of the court-room and saw nothing of the scene before him. But although there was something mysterious in Lincoln's personality which played an impor- tant part in his success as a cross-examiner, his mastery of the art was acquired in the only way it can be acquired, and that is by constant, daily practice in the courts. He was a natural logician, and by slow degrees he cultivated this gift until he could detect faulty reasoning, no matter how skilfully it was disguised. In almost every in- stance he saw the logical conclusion of an answer long before it dawned upon the witness, and was thus able to lead him without appearing to do so. It will be seen in another chapter how effectively he once employed this art. Mr. Arnold, comparing Douglas and Lincoln, says: "Both were strong jury lawyers. Lincoln was, on the whole, the strongest we ever had in Illinois. Both were distinguished for their abil- ity in seizing and bringing out distinctly and clearly the real points in a case. Both were happy in the examination of witnesses, but I think 228 THE CROSS-EXAMINER Lincoln was the stronger of the two in cross- examination." This is valuable testimony, coming as it does from a professional associate of many years' standing; and a careful reading of the great debates demonstrates that Lincoln was not only a more effective questioner, but in every other way a better-equipped lawyer than Douglas. In- deed, it was Douglas's errors of law quite as much as his errors of statesmanship which cost him the Presidency. Lincoln's skill as a cross-examiner effected some of his most dramatic triumphs, and his cause celebre is undoubtedly the trial of William Armstrong for the killing of James Metzker, where his talents in this particular saved the day for his client. The story of this now famous case has often been recounted, and its dramatic features have been skilfully utilized in at least one volume of fiction, 1 but the distortions wrought by many versions justify a complete retelling of the facts gathered directly from the records themselves and from an interview with Judge Lyman Lacey, who was associated with Mr. Walker, the def end- l See Edward Eggleston's "The Graysons." 229 LINCOLN THE LAWYER ant's attorney, and is still living in Mason County. In the days when Lincoln was working as a clerk in Offutt's New Salem store he had won the respect and admiration of the rough element in the community by flooring one Jack Armstrong, the leader of the Clary's Grove boys, in a wrestling-match, and the fallen champion in- stantly became his stanch friend and ally. Arm- strong afterward married, and Lincoln, who knew his wife, could not resist her appeal when she sought him out during the great debate with Douglas and begged him to come to the rescue of her son, who was charged with murder and was on the point of being tried. Mr. William Walker, a skilful lawyer, had been retained for the defense, but as the case against his client was exceedingly serious, he was only too willing to have expert assistance, and Lincoln therefore laid aside his pressing political engagements and plunged at once into the trial of the case. The defendant, William Armstrong, popu- larly known as "Duff," was a youth of bad habits, and on August 29, 1857, while under the influence of liquor, he had quarreled with another young man by the name of Metzker, and had 230 THE CROSS-EXAMINER beaten him severely. This occurred during the afternoon; but when the quarrel was renewed late at night, one Norris joined in the fracas, and, between him and Armstrong, Metzker received injuries which resulted in his death. Popular in- dignation against the accused was so violent in Mason County that Armstrong's lawyer moved for a change of venue, claiming that his client could not receive a fair trial in the local court; and the judge was apparently of the same opinion, for he removed the case to Beardstown, the county-seat of Cass County. Meanwhile Norris, the other defendant, was brought to trial before the home tribunal, where it was clearly shown that he had assaulted the deceased with a cart-rung; but it was not demonstrated that his blows had caused death, and the body showed other wounds not necessarily made by such a weapon. Under these circumstances the jury brought in a verdict of manslaughter, and the defendant was sentenced to eight years' im- prisonment. This was the situation when Hannah Arm- strong appealed to Lincoln; but despite the gloomy outlook, he took a hopeful view and re- assured the anxious mother. Not only were the 231 LINCOLN THE LAWYER facts against his client, but the Illinois law of that day did not permit a defendant to testify in his own behalf, so that Armstrong was precluded from giving his own version of the story and denying the testimony of the accusing witnesses. The assistant prosecuting attorney was Mr. J. Henry Shaw, and Caleb J. Dillworth, another able lawyer, was associated with him, but Lin- coln scored against them at the start by securing a jury of young men whose average age was not over twenty-five. Most of the witnesses were also young, and these Lincoln handled so skilfully on cross-examination that their testi- mony did not bear heavily against the accused. Almost all of them were from the neighborhood of New Salem, and whenever the examiner heard a familiar name he quickly took advantage of the opening to let the witness know that he was familiar with his home, knew his family, and wished to be his friend. These tactics succeeded admirably, and no very damaging testimony was elicited until a man by the name of Allen took the stand. This witness, however, swore that he actually saw the defendant strike the fatal blow with a slungshot or some such wearjon ; and Lin- coln, pressing him closely, forced him to locate 232 THE CROSS-EXAMINER the hour of the assault as about eleven at night, and then demanded that he inform the jury how he had managed to see so clearly at that time of night. "By the moonlight," answered the wit- ness, promptly. "Well, was there light enough to see everything that happened?" persisted the examiner. The witness responded "that the moon was about in the same place that the sun would be at ten o'clock in the morning and was almost full, 1 and the moment the words were out of his mouth the cross-examiner confronted him with a calendar showing that the moon, which at its best was only slightly past its first quarter on August 29, had afforded practically no light at eleven o'clock and that it had absolutely set at seven minutes after midnight. This was the turning-point in the case, and from that moment Lincoln carried everything before him, securing an acquittal of the defendant after a powerful address to the jury. There is a singular myth connected with this case, to the effect that Mr. Lincoln played a trick on the jurors by substituting an old calendar for the one for the year of the l This is the witness's answer as reported by Mr. Henry Shaw, the District Attorney. 233 LINCOLN THE LAWYER murder, and virtually manufacturing the testi- mony which carried the day. How such a rumor started no one can say, but it goes far to prove the impossibility of ever successfully refuting a lie; for though repeatedly exposed, it still per- sists on the Illinois circuit to-day. The facts are, of course, that the calendar for August 29, 1857, shows the position of the moon precisely as Lin- coln claimed it, 1 and every one who understands anything of trial work knows that an important exhibit of that sort would be examined by the judge and the opposing lawyers as well as by the jury, besides being marked for identification if submitted in evidence. Therefore Lincoln would have been a fool, as well as a disreputable trickster, if he had resorted to the asinine practice outlined in this silly tale, which practically dis- proves itself. 'In September, 1905, the United States Naval Observatory, an- swering the writer's inquiry, reported that on August 29-30, 1857, the moon set at 7 minutes 5 seconds after midnight, and at cul- mination, during the preceding twenty-four hours, "was 2 days 9 hours and 46.1 minutes past the first quarter." 234 XXI LEGAL ETHICS DESPITE his success in the Armstrong and other capital cases, Lincoln was not well qualified for work of this character, and he avoided the practice of criminal law as far as j)ossible. There has long been a tradition in the old Eighth Illinois Circuit that he once defended a murderer who was convicted, sentenced, and hanged; but as capital cases resulting in con- viction are almost invariably appealed to the highest tribunal, and as the Supreme Court re- ports do not record any murder case with which he was associated, the rumor has been supposed to be without foundation. There is, however, a paper in Lincoln's handwriting on file in Han- cock County showing that he was associated with the defense of one William Fraim, who was tried and convicted April 25th, 1839, for the murder of a man named William Neathammer and subse- quently hanged May 18th of the same year, and 235 LINCOLN THE LAWYER this is doubtless the hitherto unlocated cause of circuit memories. 1 Although he did not seek criminal practice, Lincoln did nevertheless occasionally appear in homicide cases, 2 and his defense of "Peachy" Harrison, grandson of his old political rival Peter Cartwright, the circuit-riding preacher, though less dramatic than the Armstrong case, is perhaps one of the best illustrations of his re- markable power with a jury. Young Harrison and a youth by the name of Greek Crafton quarreled over a question of politics, and a fight ensued in which Crafton re- ceived a knife-thrust resulting in his death. The case attracted considerable attention, and both the prosecution and the defense were ably repre- sented, Maj. Gen. John M. Palmer, afterward Governor of Illinois, and John A. McClernand, x The writer is indebted to the courtesy of Mr. Thos. F. Dunn, Ex-Circuit Court Clerk of Hancock County, for these facts and the opportunity of examining the original papers connected there- with. 2 Lincoln acted as prosecutor in at least one murder case. He was appointed by the court to conduct the people's case against one Wyant, who was represented by Leonard Swett, and a battle royal followed between the two lawyers which is vividly remem- bered by many of the residents of Bloomington, Illinois, with whom the writer talked. After a trial lasting many days the jurors brought in an irregular verdict, which virtually committed the defendant to the lunatic asylum, but finally they acquitted him under what was equivalent to a court direction. 236 LEGAL ETHICS who also became a distinguished general in the Civil War, appearing for the people, and Lincoln, Herndon, Judge Logan, and Shelby M. Cullom, the present United States senator and ex-Governor of Illinois, being retained for the defendant. There was some conflict of testimony over the facts leading up to the killing, but the defense did not make much impression until Lincoln put the defendant's grandfather, Peter Cartwright, on the stand, and with touching solicitude drew from the old man the story of his last interview with the deceased, in which he expressed his reconcilia- tion with his assailant, whom he prayed would not be held responsible for his death. Then, with virtually no facts to support his plea, Lincoln began his address to the jury, exhorting them to heed the dying victim's words and abstain from visiting further sorrow and affliction upon the venerable preacher who had delivered them a message almost from the other world; and so powerfully did he move his auditors that the efforts of the prosecution were unavailing and a verdict of acquittal followed. Lincoln was not considered a formidable op- ponent in the criminal courts, however, unless he 14 237 LIXCOLN THE LAWYER thoroughly believed in the justice of his cause. Mr. Whitney reports that on one occasion when he was defending a man charged with man- slaughter, the testimony demonstrated that his client ought to have been indicted for murder in the first degree, whereupon Lincoln instantly lost all interest in the case. He did not actually abandon the defense, but he could not cooperate effectively with his associates, who were endeav- oring to acquit the defendant, and one of them states that when Lincoln addressed the jurors he disparaged the effort which had been made to work upon their feelings and confined himself to a strictly professional argument along conven- tional lines, with the result that the defendant was found guilty and sentenced to three years' imprisonment. This fairly disgusted Mr. Whit- ney, who was anxious to have the murderer ac- quitted, and he does not hesitate to characterize Mr. Lincoln's conduct as "atrocious." But Lincoln was guilty of many other "atroci- ties" of the same character. It is well known that he virtually abandoned his client in another capital case when he discovered that he was de- fending a guilty man. "You speak to the jury," he said to Leonard Swett, his associate counsel; 238 LEGAL ETHICS "if I say a word, they will see from my face that the man is guilty and convict him." On another occasion, when it developed that his client had in- dulged in fraudulent practices, he walked out of the court-room and refused to continue the case. The judge sent a messenger, directing him to return, but he positively declined. "Tell the judge that my hands are dirty and I 've gone away to wash them," was his disgusted response. This conduct in the court-room was in entire keeping with his office practice, where he declined time and again to undertake doubtful causes, dis- couraged litigation, and discountenanced sharp practices. "Yes" Mr. Herndon reports him as advising a client, "we can doubtless gain your case for you; we can set a whole neighborhood at loggerheads; we can distress a widowed mother and her six fatherless children, and thereby get for you six hundred, dollars to which you seem to have a legal claim, but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember, however, that some things legally right are not morally right. We shall not take your case, but we will give you a little advice for which we will charge you 239 LINCOLN THE LAWYER nothingo You seem to be a sprightly, energetic man. We would advise you to try your hand at making six hundred dollars in some other way." At another time he was very anxious to secure delay in a certain case, and Herndon drew up a dilatory plea which would effectually postpone the trial for at least one term of court. It was the sort of thing which is condoned in almost every law office, but Lincoln repudiated it the moment it came to his notice. "Is this founded on fact?" he demanded of his partner, and Hern- don was obliged to admit that it was not, urging, however, that it would save the interests of their client, which would otherwise be imperiled. But Lincoln was not to be persuaded. 'You know it is a sham," he answered, "and a sham is very often but another name for a lie. Don't let it go on record. The cursed thing may come staring us in the face long after this suit has been for- gotten." Herndon complied with this instruc- tion and the paper was withdrawn. These and similar actions have been character- ized by one highly respectable authority as "ad- mittedly detracting from Lincoln's character as a lawyer," but no member of the profession who has the best interests of his calling at heart will 240 LEGAL ETHICS accept such a conclusion. On the contrary, it is because he had the courage and character to up- hold the highest standards of the law in daily practice that Lincoln is entitled to a place in the foremost rank of the profession. He lived its ideals and showed them to be practical, and his example gives inspiration and encouragement to thousands of practitioners who believe that those things which detract from the character of the man detract from the character of the lawyer. Some of Lincoln's biographers apparently dis- regard his legal history because he never suc- ceeded in making much more than a bare living from his practice, and they seemingly conclude from this fact that he is not entitled to high rank in the profession. This view, of course, misses one of the vital points in Lincoln's character both as a man and a lawyer, for he placed prin- ciple beyond price and illustrated the maxim that it is "better to make a life than a living." Before he had won his place at the bar he had stated his theories on the subject. "The matter of fees is important, far beyond the mere question of bread and butter involved," he wrote in his notes for a law lecture. "Properly attended to, fuller justice is done to both lawyer and client. 241 LINCOLN THE LAWYER An exorbitant fee should never be charged. As a general rule, never take your whole fee in ad- vance, nor any more than a small retainer. When fully paid beforehand, you are more than a com- mon mortal if you can feel the same interest in the case as if something was still in prospect for you as well as for your client." This was largely the advice of a theorist; but Lincoln carried it into practice so completely that the profession was scandalized. Indeed, one of his associates relates an incident where Lincoln's scruples proved exceedingly embarrassing. He had been retained to oppose the removal of a con- servator, or legal guardian, of a woman whose mind was deranged. The estate involved about ten thousand dollars, and the man who was at- tacking the conservator evidently desired to have him removed so that he could marry the lunatic and obtain possession of her funds. Lincoln made short work of this nefarious business; but when he learned that the attorney who had re- tained him had charged two hundred and fifty dollars for their joint services, he refused to take any share of the money until the fee had been reduced to what he deemed a reasonable amount. When Judge Davis heard of this, he was 242 LEGAL ETHICS highly indignant. "Lincoln, you are impoverish- ing the bar by your picayune charges," he is said to have exclaimed; and the lawyers thereupon tried the offender by what was called on the cir- cuit an "orgmathorical" (mock) court, but he stood trial, and being found guilty, paid the fine with the utmost good-nature. Judge Weldon describes another episode which perfectly illustrates Lincoln's attitude to- ward more than one aspect of the law. A Por- tuguese by the name of Dungee married a girl named Spencer, and later there was a family quarrel between the bridegroom and his relatives- in-law which became so bitter that the girl's brother referred to her husband as "a nigger," and followed this up by describing him as "a nigger married to a white woman." Dungee thereupon retained Lincoln and sued his brother- in-law for slander. The defendant was repre- sented by Mr. Moore and Judge Weldon, and when the case was moved for trial in Clinton County, Judge Weldon demurred to Lincoln's complaint on technical grounds, and the de- murrer was sustained. Lincoln was not too pleased that his papers were rejected as faulty, but he redrew them, merely remarking to his op- 243 LINCOLN THE LAWYER ponents, with significant determination, "Now I will beat you!" When the case reappeared for a hearing, he was as good as his word, attacking the defendant with great severity for his scanda- lous utterances. After a two days' battle, the jury decided for the plaintiff, and the verdict amounted to what was a large sum in those days. But although he had won the fight, Lincoln was not satisfied with the result. "As a peacemaker the lawyer has a superior opportunity of being a good man" he had written as a theorist, and in practice he was still able to see that money damages do not heal family feuds. Thereupon he persuaded his client not to insist upon the payment of the verdict, and the matter was finally adjusted by the defendant agreeing to pay the costs and lawyers' fees. Lincoln stipulated that his ad- versaries should fix the amount of his fee; but when they declined to do so, he remarked: "Well gentlemen, dont you think I have honestly earned twenty-five dollars?" Certainly there are good grounds for criticizing Lincoln as a business man, and no one will dis- pute the charge that he was utterly lacking in all the essentials of commercial genius. 2U XXII LEGAL REPUTATION ONE of Lincoln's latest biographers, in ex- pressing admiration for his statesmanship, enumerates his disadvantages, and asserts that before he went to Washington "he had had no experience in diplomacy and statesmanship; as an attorney he had dealt only with local and State statutes ; he had never argued a case in the Supreme Court and he had never studied inter- national law." There is very little inspiration in the career of a man whose achievements are inexplicable or whose natural endowments are the despair of ordinary mortals, and eulogies which tend to rob Lincoln of human interest and incentive are usually based on misinformation. Certainly the wondering tribute above quoted displays no convincing acquaintance with the facts, for it entirely misrepresents the extent and value of Lincoln's legal education. His three and twenty years' active practice in the courts 245 LINCOLN THE LAWYER supplied him with the best of diplomatic training. It did not, of course, familiarize him with the etiquette and forms of international relations, but it gave him a thorough knowledge of men and taught him "to see behind the smiling mask of craft." Much the same experience qualified an Ex-Secretary of State to cope successfully with the most skilful diplomats of Europe during the Spanish War, and to confer high distinction upon our modern statesmanship. Again, Lincoln's knowledge of law was not confined to local or State statutes. He was acquainted with the great principles of the Eng- lish common law, and if he was not familiar with "the waves and tides of legal authority," he was still well grounded in all the fundamentals of his profession, and it would be absurd to deny him recognition as a lawyer merely because he "never had had a case in the United States Supreme Court." But even in this small particular the biographer is at fault, for Lincoln did have a case before that tribunal, known as Lewis v. Lewis 1 (reported in 7 Howard, 776), and the *It is an interesting fact that Judge Taney, of Dred Scott fame, delivered the prevailing opinion of the court in this case. Another of Lincoln's cases in the United States Supreme Court is Forsythe v. Reynolds, 14 Law. Ed. 729. See also 7 How. 185. 246 i CrU^O cf£*u Us*jjLU- ,-*'-../.. UJL^CZ~J JLe^-^J //(_/ f-j /i-uzn/'V*'-*— ■—o' i^--£i*Xj ' rfx-C yiCC^V-, erf* pj2s-~^e> <^~»^£^C^w erf Q\^x? /x^L^ee/ JU, /^&&j a 2Z5<^-y <2,^^y ^-, fisCaZZ * As / • • ■ ~s A L^fZ, ■*Z~C-C fh^v~^~> ^^ZZZZ^u (-Z\S A" JfcW^-. ZW. /&S7>, AS&stJt C%-J Osv^-j /(jy-cA^c^t, q^g-~-^-*aj B-^^'~*~^ a- ^/' / 'jfir^£^~' (s& r ~ z -~**~'j / i, /^T^ GscX? A^-e-- £st~f* / C^*~^ / l l~~*^*s 4^tv*^ ens jtZrHZi-ij n-t,— From General Alfred Oremiurflfs collection Facsimile of the first page of Lincoln's opinion on a question involving the construction of the charter of the Illinois Central Railroad 251 LINCOLN THE LAWYER as lay within their respective jurisdictions, and a great legal battle ensued. The issue was a vital one for the corporation, for the claims of the county threatened it with bankruptcy, and rail- roading in Illinois was then in its experimental stage. Lincoln conducted the defense with rare skill but lost in the first court. He instantly ap- pealed the case to the Supreme Court, how r ever, and there it was twice argued before a final de- cision was recorded in favor of the road at the end of two years' litigation. This celebrated case was provocative of an- other, for the Illinois Central declined to pay Lincoln's bill for services rendered in the tax matter without suit, and he brought an action in the Supreme Court for $5,000 and costs. On the trial all the leaders of the Illinois bar— O. H. Browning, N. B. Judd, Isaac Arnold, Grant Goodrich, Archibald Williams, Judge Norman Purple, Judge Logan and Robert Blackwell — joined in a written statement which was presented to the court, certifying that Lincoln's bill was reasonable and the jury promptly brought in a verdict for the full amount. It is interesting to note Lincoln's attitude and conduct in this litigation. When the case was 252 LEGAL REPUTATION first called for trial, no one appeared on behalf of the railroad, and judgment was awarded to the plaintiff by default : nevertheless Lincoln agreed that the case might be reopened, thus allowing the defendant to have its day in court without penalty; and when the verdict was rendered, he agreed to have it set aside because he had forgotten to introduce proof of two hundred dollars which had been given him as a retainer, and the final verdict was recorded at forty- eight hundred dollars and costs. Incidentally it may be mentioned that the services for which Lin- coln was obliged to sue would to-day cost the cor- poration not five, but fifty, thousand dollars. It is only fair to state that within the last few years the Illinois Central Railroad has issued an elaborate pamphlet giving its side of this case, and undertaking to show that Lincoln's bill was not certified out of deference to the board of directors, who might have censured the local offi- cials for voluntarily paying so large a charge against their company, and that the trial was merely a formality. Lincoln's unusually careful brief on the law and the facts, however, does not bear out the contention that the litigation was friendly, and there are other facts which tend to 15 253 Ulctlu'ivt*: , £uk&* &***(/ Z^pU, Cfjtj /C~~e~^/ £j£> OucZtZ-tS fLM^X cf* Offal/ /U-O0-»C_ ££o 4W/> tfi-o*^—?/ /Z£j -- QriCaZs ay (Zn~*/ {Kr%; J*%, (>r***x*/ fifi) AsiZZv a*e*-*y*~& <»w A/T^ufc. From General Alfred GrendorrTs collection Facsimile of part of Lincoln's trial brief in his case against the Illinois Central Railroad, showing his careful preparation of the issues indicate that the corporation's treatment of its distinguished counsel was not as handsome as the publication in which it now explains its action. 1 1 For more extended reference to this matter see Appendix. 254 LEGAL REPUTATION While Lincoln was traveling the circuit with Judge Davis, he was retained in the now famous case of McCormick v. Manny, 1 an action brought by the plaintiff, who owned valuable patents for reaping-machines, to enjoin the defendant from manufacturing similar contrivances and to re- cover four hundred thousand dollars damages for infringements. Lincoln was engaged by a Mr. Watson, who was in charge of the defense, and the original plan was to have him conduct the forensic part of the trial. Mr. E. H. Dick- erson, a well-known patent solicitor, had been re- tained by McCormick to make the technical argument, and Reverdy Johnson, the noted Baltimore advocate, and one of the most distin- guished lawyers in the country, was to oppose Lincoln, who was naturally very anxious to measure himself against a man of such wide reputation. But Mr. Watson also saw fit to re- tain Mr. Harding, a patent solicitor, and Edwin M. Stanton, who then resided at Pittsburg, but who was well and favorably known in Cincinnati, where the trial was to take place, and whose per- sonal influence with the court was relied upon to offset the great reputation of Reverdy Johnson. 1 Reported in McLean's U. S. Reports, vol. vi, p. 539. 255 e^Q/ ^A3 5 os ■^ M * ca-,3- rt OS = rt 3> O 3 a °* 3 "« 5 & £"£ Qtq o M *< P v! os p 5 r o — rt- 3 * o 5-P 2. < o rt R p" 3 ca- o P rt- C3 Os" o *T1 O p < H 3 rt- o rt 3 o " c 3 3* £.cr OS *3 P o t/3. 3 5 te •1 .f 3 3 -! r+ w rt- & t*3 p 7q •p rt P §! 3' n5" p OS p =r OS rt- rt rt rt 4 n> rt' p rt- rt- 3 3- P rt >-« j D" w rt- 3 3? rt rt rt J3 > rt- 3" rt 3? o 3 ►1 J s. OS rt- 3 •I O 3 P rt CI. ?r «J LEGAL REPUTATION Another notable civil cause in which he was en- gaged was known as the "sand-bar case," 1 in- volving certain accretions to the shore of Lake Michigan of vast importance to the Illinois Central Railroad, and his discussion of the law on behalf of his client displayed high ability and resourcefulness. Much of Lincoln's effectiveness in this class of work was due to his mental independence. Pre- cedents did not make him over-confident, and they never balked him. Back of the recorded adjudication he sought the reason, and if it did not satisfy his mind, he would not accept it. Very few lawyers possess sufficient independence and originality for research of this character, and the average brief, though it often displays great in- genuity in reconciling divergent authorities, v/itnesses was very full and no point escaped his notice. I thought he carried it almost to prolixity, but when he came to his argument I changed my opinion. He went over all the details with great minuteness, until court, jury, and spectators were wrought up to the crucial point. Then drawing himself up to his full height, he delivered a peroration that thrilled the court-room and, to the minds of most persons, settled the case." iThis case, entitled Johnson v. Jones et ah, was tried in the United States Circuit Court before Judge Drummond and a jury, in Chicago, March 19, 1860 (about two months before Lincoln's nomination for the Presidency), and it is the last cause of im- portance in which he appeared. Messrs. Buckner S. Morris, John A. Wills, and Isaac N. Arnold represented the plaintiff, and the defendants' counsel were Abraham Lincoln, Samuel L. Fuller, Van H. Higgins, and John Van Annan. 261 LINCOLN THE LAWYER rarely indicates any really creative thought. Legal argument calls for a higher order of ability than jury work, and it developed Lincoln's talents for logical reasoning until it perfected him to meet and refute the most ingenious debater of his, or possibly of any other, day. 262 XXIII LAW IN THE DEBATE LINCOLN had been practising on the Eighth ■A Circuit for five years when the bill to repeal the Missouri Compromise was introduced in Con- gress (1854) and during that time he had devoted himself exclusively to the duties of his profession. It is not possible to obtain an accurate record of the number of cases he tried during those five years, for his name was not always entered on the dockets when he acted as counsel for other law- yers, but we know that he argued at least forty appeals in the Supreme Court within that period, and the records of the various county-seats and the testimony of his contemporaries go far to dem- onstrate that no other lawyer on the circuit, and probably none in the State, had anything like the number and variety of cases which he conducted between 1849 and 1854. It was during the last- named year that the bill was introduced author- izing Congress to organize Kansas and Nebraska 263 LINCOLN THE LAWYER as Territories, and to this bill an amendment was added repealing the Missouri Compromise Act by which slavery was prohibited in the proposed new Territories. Lincoln was attending court on the circuit when this news reached him, and Judge Dickey, one of his fellow-practitioners, who was sharing his room in the local tavern at the time, reports that Lincoln sat on the edge of his bed and discussed the political situation far into the night. At last Dickey fell asleep, but when he awoke in the morning, Lincoln was sitting up in bed, deeply absorbed in thought. "I tell you, Dickey," he observed, as though continuing the argument of the previous evening, "this nation cannot exist half -slave and half -free." This is probably the first time Lincoln ever used the phrase which was destined to become so famous in later years, and shortly afterward he made his first direct answer to one of Douglas's speeches supporting the Missouri Compromise repeal, and the great duel of debate began. To say that the general public was surprised by the force and effectiveness of Lincoln's attack is to put the matter very mildly. It was fairly aston- ished, and the most amazed man in the community was probably Judge Douglas himself. He had 264. m Judge Stephen A. Douglas LAW IN THE DEBATE been absorbed with his duties in the United States Senate for the past seven years, and Lincoln, hard at work with court duties, had vir- tually disappeared from his view. He had known him as a local practitioner and effective stump- speaker and country attorney, but he was not prepared for the logical, lawyer-like arraignment to which he found himself subjected, and after two more encounters with this new antagonist, he called a truce, proposing that neither he nor Lin- coln should make any more speeches during the rest of the fall campaign. To this Lincoln as- sented, returning to his law practice; and thus ended the first skirmish of what was destined to be one of the most notable debates of history. Lincoln kept steadily at his court work until the fall of that year, when he decided that to do effective service in the campaign against the ex- tension of slavery he would have to reenter politics, and, being nominated for the Illinois Assembly, he made the necessary canvass, and was elected by a great majority in November, 1854. He had no sooner taken office, however, than he resigned to become a candidate for the United States senatorship; but his selection was frustrated by a combination among the local 267 LINCOLN THE LAWYER politicians, and Lyman Trumbull, another mem- ber of the bar, obtained a majority of the votes. This was in February, 1855, and Lincoln im- mediately resumed his duties on the circuit. Dur- ing this and the following year he argued and won the McLean County case for the Illinois Central, prepared and appeared in the McCor- mick reaper action, argued no less than thirteen appeals in the court of last resort, and otherwise spent the most active year and a half in his entire professional career. Under this daily training in the courts his immense latent powers steadily developed, his mind expanded and his confidence increased, and it was undoubtedly the leader of the Illinois bar who addressed the convention at Bloomington on May 29, 1856. The speech which he delivered on that occasion was lost to the world because he held the audience so spell- bound that even the reporters forgot their duties and neglected to take notes ; but those who heard it srjread the tidings that a new champion had entered the political arena equipped to do battle with all comers. But Lincoln did not feel him- self fully prepared, and when the first Repub- lican convention was held at Philadelphia, a few 268 LAW IN THE DEBATE weeks later, the news that he had received one hundred and ten votes for Vice-President reached him while he was engaged in trial work at Ur- bana. "It can't be me they are voting for," was his smiling comment; "there 's another great man of the same name somewhere in Massachusetts. It 's probably him." Important events followed in quick succession, but Lincoln stuck steadily to his court duties. Fremont and Dayton were nominated by the Republicans against Buchanan and Breckin- ridge; but except for making a number of speeches for Fremont in the fall, Lincoln's pro- fessional life went on uninterruptedly. Then Buchanan was elected, and shortly after his in- auguration the Supreme Court announced its decision in the Dred Scott case, which, instead of smothering the fires of anti-slavery agitation, added fuel to the flames which burst out in every part of the country. Meanwhile Lincoln continued active in the courts, gaining greater reputation with every term, and rapidly rounding into shape. From 1856 to 1858 his name appears fifteen times in the Illinois appellate reports, and within the same period he tried the celebrated Wyant 269 LINCOLN THE LAWYER murder case in Bloomington ; his leadership of the bar was everywhere acknowledged, and he was in the midst of the most active professional duties when he was nominated by the Illinois Republicans to succeed Douglas, whose term in the Senate was just expiring. As on other occa- sions when he stood confronted by opportunity, the man responded to the power within him, and he accepted the great task which lay before him with calmness and quiet confidence. His op- ponent had the prestige of eleven years' senatorial experience, he was recognized as one of the best debaters in the upper house, and acknowledged as a national leader of marvelous personal charm — the ideal of his home constituents, and the probable Presidential candidate of the national Democracy. Lincoln did not underestimate his abilities; but he had taken his measure in their previous tilt, and he did not hesitate to challenge him to debate the issues of the campaign. "Mr. Lincoln is a very amiable gentleman," was Douglas's first reply; but later he yielded to the pressure of his friends, and accepted the chal- lenge. From the moment of collision it was evident that a great struggle was imminent, and, despite 270 LAW IN THE DEBATE the applause and flattery of his supporters, Douglas must have known in his heart of hearts that he had at last met his match. Brilliant and resourceful as he was in popular appeal, his dexterity with the weapons of debate was more than offset by Lincoln's better know- ledge of law and his greater familiarity with legal argument, and the contest hinged largely upon the effect of the Dred Scott case as decided by the Supreme Court. Dred Scott, it will be remembered, was a negro whose Missouri master, after a short residence in Illinois, had moved into what was then Wisconsin Territory (now Minnesota) with the slave, and, after living there for a time, had returned to Missouri and sold him. Scott thereupon sued in a Missouri court to establish his freedom, claiming that his residence in the free state of Illinois and the free Territory of Wisconsin had emancipated him. The first local court sustained his contention, but the de- cision was reversed on appeal. He was then sold to a man in New York, and began another suit in the federal courts of St. Louis, which promptly ruled against him. The case was then appealed to the United 16 271 LINCOLN THE LAWYER States Supreme Court at Washington, where the plaintiff was represented by Montgomery Blair and George Ticknor Curtis, and the defendant by Reverdy Johnson, whom Lincoln had hoped to meet in the McCormick case; and after two elaborate hearings Scott was declared a slave by a divided vote of the judges, two of whom wrote dissenting opinions. This decision of the highest tribunal in the country was expected to settle the slavery issue, for it decreed protection to slave- owners in the enjoyment of their property wher- ever situated as a constitutional right. Lincoln, however, promptly challenged the authority of any court to dispose of a great national issue such as the slavery question, and early in the debate with Douglas he forced the discussion of this subject to the fore. "In the field of argumentative statement, Mr. Webster at the time of his death had no rival in America," says Mr. Boutwell, "but he has left nothing more exact, explicit, and convincing than this extract from Lincoln's first speech in the great debate: 'If any man choose to enslave an- other, no third man shall be allowed to object,' which embodies the substance of the opinion of the Supreme Court of the United States in the Dred Scott case." 272 LAW IN THE DEBATE Douglas instantly responded by declaring that those who resisted the finding of the court were traitors fomenting revolution, and intimated that his adversary's duty as a lawyer was to up- hold the law and discountenance resistance to its decrees. But Lincoln's reply was so calm, fair, dignified, and professionally correct that it not only put his accuser completely in the wrong, but placed his opposition on a high and perfectly legal plane. "We believe as much as Judge Douglas (per- haps more) in obedience to and respect for the judicial department of government" he asserted. "But we think the Dred Scott decision is er- roneous. We know the court that made it has often overruled its own decisions and we shall do what we can to have it overrule this. We offer no resistance to it. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partizan bias and in accordance with legal public expectation and the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or if, wanting in some of these, it had been before the court more than once, and had there been affirmed and reaffirmed through a 273 LINCOLN THE LAWYER course of years, it then might be, perhaps would be, factious, nay, even revolutionary, not to ac- quiesce in it as a precedent. But when, as is true, we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country." If Douglas had been permitted to choose his weapons he would doubtless have avoided all legal controversy with his trained opponent; but the situation did not admit of silence, and he was forced to discuss the meaning and effect of the Supreme Court's decision with a master of logic well versed in the maxims and principles of con- stitutional law. The effect of this was speedily apparent. At the outset of the campaign his vic- tory over Lincoln had seemed an absolute cer- tainty, but, as time wore on, the result began to be questioned, and each meeting with his rival left the outcome in greater doubt. Finally he decided to cany the war into the enemy's country and in an evil moment he propounded a series of ques- tions intended to confuse and embarrass his ad- versary. Had he remembered Lincoln's searching interpellation of the Polk administration in the 274 LAW IN THE DEBATE "Spot Resolutions," he might have hesitated in his attempt to bait the ablest cross-examiner in the State ; but apparently he did not perceive the opening which he gave to his opponent. "1 will answer these interrogatories' 3 an- nounced Lincoln, when he received the seven questions intended to entrap him, "upon condition that he [Judge Douglas] will answer questions from me not exceeding the same number. I give him an opportunity to respond" No reply came from his adversary, and the vast audience at Freeport waited the outcome with a breathless interest which the keen jury lawyer instantly interpreted. "The judge remains silent/' continued Lin- coln, impressively. "I now say I will answer his interrogatories whether he answers mine or not; but after I have done so, I shall propound mine to him." Another breathless pause greeted this resistless challenge and then the speaker began reading Douglas's questions. No lawyer who examines them can fail to see that they were so loosely worded as to admit of a negative answer in every instance, rendering them utterly ineffective, and Lincoln disposed of them in this manner. But 275 LINCOLN THE LAWYER having shown that he could in this way techni- cally defeat his opponent's object, he instantly waived the form of the questions and replied to them one after the other as fairly and frankly as any one could desire; and, having done so, he propounded four counter-questions which proved to be the most fatal "cross-examination" or counter-questioning in history. All the inquiries were adroit, but it was the second which displayed Lincoln as a master of interrogation. "Can the people of the United States Terri- tory" he asked, "in any lawful way, against the wish of any citizen of the United States, exclude slavery from its limits prior to the formation of a State constitution?" The answer to this question required Douglas to interpret the Dred Scott decision. If he replied in the negative, the people of Illinois would repudiate him, because they would not countenance the idea that the mischief had been done and that slavery had already been forced upon the Territories. If, on the other hand, he answered that the Territories were still free to choose or reject slavery, he would have to explain away the Dred Scott decision, which guaranteed 276 LAW IN THE DEBATE protection to slave property in the Territories as a constitutional right; and this would displease the Southern Democracy which was then listen- ing to his every word to determine whether he was or was not a safe Presidential candidate. The Republican politicians of Illinois were not so astute as Douglas; still they foresaw that he would give a plausible answer to the question which would satisfy the local voters, and they begged Lincoln to withdraw the inquiry. But the far-sighted lawyer who framed it was deaf to their entreaties. "Then you will never be sen- ator!" was the angry warning of one of his ad- visers. "If Douglas answers," responded Lin- coln, calmly, "he will never be President." The fatal question was therefore left as Lin- coln had phrased it, and at the first opportunity Douglas answered by stating that the Territories were still free agents. They could exclude slavery despite the Dred Scott decision, he ex- plained, simply by adopting local police regula- tions so hostile to slavery that no slave-owner could enjoy his property within their boundaries. As soon as he had uttered it, Douglas must have seen that his answer involved a gross blunder in law; but if he had any doubt on the matter, 277 LINCOLN THE LAWYER Lincoln speedily dispelled it. How could the constitutional right of peaceful enjoyment of slave property guaranteed in the Dred Scott case be canceled by police or any other hostile legisla- tion? he demanded. Any such ordinance or law would be contrary to the constitution and ab- solutely void. Either Judge Douglas's answer or the doctrine of the Supreme Court was bad law, for the one was inconsistent with the other. But, illogical as it was, this fallacy caught the popular fancy, and Douglas, seeing that it sat- isfied his constituents, held to it and was elected to the Senate. Nevertheless, as Lincoln anticipated, his blunder in law cost him the Presidency, and not long afterward Judah Benjamin, one of the most ardent and able representatives of the South, arraigned him as a renegade and traitor. "We accuse him for this," he thundered: "that having bargained with us upon a point upon which we were at issue, that it should be con- sidered a judicial point; that he would abide the decision; that he would act under the decision, and consider it a doctrine of the party; that having said that to us here in the Senate, he went home, and, under the stress of a local election, his knees gave way ; his whole person trembled. His 278 LAW IN THE DEBATE adversary stood upon principle and was beaten; and lo, he is the candidate of a mighty party for the Presidency of the United States. The sen- ator from Illinois faltered. He got the prize for which he faltered; but the grand prize of his ambition to-day slips from his grasp because of his faltering in his former contest, and his success in the canvass for the Senate, purchased for an ignoble price, has cost him the loss of the Presi- dency of the United States!" Thus two years after Lincoln's question was put and answered Douglas was repudiated by his Southern friends, the Democratic party was split, three candidates instead of one were nominated against the Republicans, and the lawyer whose skill had precipitated this result was trium- phantly elected at the polls. 279 XXIV AS CANDIDATE LINCOLN had very little time for the practice ^ of the law during his campaign against Senator Douglas, but he did not, as is generally supposed, wholly abandon his professional duties. In the midst of the debates he tried the Arm- strong murder case, his most celebrated cause, and the moment the election was decided he resumed his attendance on the circuit. It was while he was engaged in this work that his friend Jesse Fell, an Illinois politician, met him in the streets of Bloomington, and, drawing him into a deserted law office, seriously suggested that he become a candidate for the Presidential nomina- tion. Mr. Fell had been traveling in the East during the great debates, and had been impressed by the repeated inquiries addressed to him con- cerning the personal history of the man who was making such a sturdy fight against the famous Illinois senator, and he had reached the conclusion 280 AS CANDIDATE that Lincoln was a Presidential possibility. No other lawyer in the country had dissected the Dred Scott decision as he had dissected it, either from a legal or from a popular standpoint, and of the thousands who were discussing the slavery question he was the only one whose argument sounded fresh and convincing. From Maj, Wm. H. Lambert's collection. Chair used by Lincoln in his law office. (Destroyed by fire June 4, 1906.) But Lincoln was not then prepared to take Fell's suggestion seriously, and he declined for the time being to furnish the sketch of his life which his friend requested, and it was not until some months later that he was persuaded to re- consider the matter. On February 27, 1860, he delivered the remarkable address at Cooper Union, New York, which was instantly recog- 281 LINCOLN THE LAWYER nized as the ablest discussion of the slavery issues ever undertaken by a public speaker, and his na- tional reputation dates from that day. The speech which he delivered on that occasion was neither oratorical nor partisan. It was a calm, dispas- sionate, lawyer-like argument, keyed to the high intelligence of the audience to which it was ad- dressed, and it exhibited Lincoln as a master of all the historical and legal data involved in the subject. No one but a fully equipped lawyer experienced in the handling of facts, and one trained to make their legal bearing clear to the layman by logical analysis, could possibly have held his critical hearers as Lincoln held them, and his triumph was the direct result of three-and- twenty years of service in the courts. After the Cooper Union address, Lincoln made a short speech-making tour in New Eng- land; but except for this work and two speeches in Ohio toward the close of the previous year, he was engaged as usual in his law practice, and 1859 was perhaps the busiest of his professional years. It was within those twelve months that he tried and won the famous Harrison murder case, and during the sessions of the Supreme Court he appeared in no less than ten appeals. For the 282 Maj. Gen. John M. Palmer AS CANDIDATE first half of the succeeding- year he was ap- parently equally mindful of his law business, and shortly before the Chicago convention at which he was nominated he argued one of his best- known cases, popularly termed the "sand-bar" case, in the United States Circuit Court. This, however, was the last case he tried. 1 Two months later the Eighth Circuit was well and ably represented at Chicago by Judge Davis, Leonard Swett, Judge Logan, John M. Palmer, Richard Oglesby, Mr. Herndon, Judge Weldon, and others. These men had gone to the conven- tion determined to procure Lincoln's nomination, and they were well qualified for the work at hand. "The lawyers of our circuit," wrote Leonard Swett, "went there determined to leave no stone unturned ; and really they and some of our State officers and a half-dozen men from various por- tions of the State were the only tireless, sleepless, unwavering, and ever-vigilant friends he had." Circumstances aided this little group of law- yers, but they were alive to every opportunity, and, as ex- Vice-President Stevenson pointed out to the writer, it was Lincoln's acquaintance with certain of the Indiana delegates whom he had met 'See foot-note, page 261. 285 LINCOLN THE LAWYER while traveling the circuit counties bordering on that State, which proved the opening wedge. Pennsylvania was the next point of attack, but when Lincoln heard talk of a bargain being made with Simon Cameron's followers, he sent positive instructions that no promises should be made in his name and that he would be bound by none. His zealous friends did, however, enter into an agreement with the Pennsylvanians which was destined to cause their principal much embarrass- ment at a later date, when he found himself vir- tually committed to appoint Simon Cameron to a cabinet position. When the moment for nominations arrived, it was N. B. Judd, one of the attornej^s for the Rock Island Railroad, and Lincoln's constant legal associate, who placed his name before the con- vention, and when Caleb Smith, another lawyer, seconded it on behalf of Indiana such a roar of approval burst from the Illinois delegation as was never before heard in any convention hall. "Lincoln has it by sound now; let us ballot!" shouted Judge Logan as soon as he could make himself heard, and on the third ballot the leader of the Illinois bar and the idol of the Eighth Cir- cuit was declared the choice of the convention. 286 N. B. Judd Attorney for the Rock Island Railroad who nominated Lincoln for the Presidency AS CANDIDATE It would perhaps be too much to claim that Lincoln's strategic caution and masterly silence during the eventful months which followed were entirely due to his professional habit, but it can- not be doubted that almost every legal experience demonstrates the wisdom of keeping one's own From Maj. Wm. H. Lambert's collection Inkstand used by Lincoln in his law office counsel, and the fate of the talkative witness who volunteers testimony after his examination is finished was probably not lost upon the Presi- dential candidate. He had given his testimony in full, his record was open to all who would read it, and despite deep provocation and the urging 289 LINCOLN THE LAWYER of many friendly advisers, he took no part in the fierce campaign which resulted in his election. From Maj. Wra. H. Lambert's collection Bookcase and table used by Lincoln in his law office (Destroyed by fire June 4, 1906) Even after the contest was over and he was im- plored to say something to reassure the seceding South, he resisted the temptation to interfere with his predecessor's administration, knowing full well that his advice would be disregarded and that it was hopeless to try to save the situation 290 AS CANDIDATE with words alone. It reminded him, he said, of one of his experiences on the circuit when he saw a lawyer making frantic signals to head off an associate who was making blundering admissions to the jury, and who continued utterly oblivious to the efforts which were being made to check his ruinous work. "Now, that 's the way with Bu- chanan and me, " was his only comment. ' ' He 's giving the case away and I can't stop him." As the hour for action drew near and Lincoln was on the eve of departure for Washington, he visited his law office to attend to some business matters. "After all these things were disposed of," relates Mr. Herndon, "he crossed to the opposite side of the room and threw himself down on the old office sofa, which after many years of service had been moved against the wall for support. He lay there for some moments, his face toward the ceiling, without either of us speaking. . . . He then recalled some incidents of his early prac- tice and took great pleasure in delineating the ludicrous features of many a lawsuit on the cir- cuit. . . . Then he gathered up a bundle of books and papers he wished to take with him, and started to go, but before leaving he made the 17 291 LINCOLN THE LAWYER strange request that the sign-board which swung on its rusty hinges at the foot of the stairway should remain. 'Let it hang there undisturbed,' he said, with a significant lowering of his voice. 'Give our clients to understand that the election of a President makes no difference in the firm. . . . If I live I 'm coming back some time, and then we '11 go right on practising law as if nothing had ever happened.' . . . He lingered for a moment as if to take a last look at the old quarters, and then passed into the narrow hall- way." Mr. Herndon does not state whether or not the sign remained as his partner requested, but it is certain that to-daj^ there is nothing to mark or honor any of the office sites in the city of Springfield, where Lincoln the lawyer practised during almost a quarter of a century. 1 'A part of Mr. Lincoln's law library of 1861 is still in existence. In the Lambert collection: Illinois Conveyancer; Angell on Limita- tions. In the Vanuxem- Potter collection: A volume containing the Declaration of Independence, etc.; Chitty's Pleadings and Parties; Stephen's Commentaries on the Laws of England; Greenleaf on Evidence, Vol. 1; Revised Statutes of Illinois, 1844; Kent's Com- mentaries; Smith's Landlord and Tenant; Story's Equity Jurispru- dence, 1843; Parsons' Law of Contracts, 2 vols.; Wharton's Criminal Law; Redfield's Law of Railways; Stephen's Pleading. In the Oren- dorf collection: Barbour & Herrington, Eq. Dig., Vol. 3; Biddle & McMurtrie, Index to Eng. Com. Law, 2 vols. ; Taylor on Poisons in Relation to Medical Jurisprudence; Barbour's Eq. Dig. of U. S., etc. ; 3 Curtis' U. S. Dig., 1846; Chitty & Temple, Law of Carriers; Angell & Ames on Corporations; 1 U. S. Digest for 1847. 292 XXV AS PRESIDENT THE condition of the government when Lin- coln reached Washington may fairly be described as chaotic. Bewildered and intimidated by threats of secession, most of the political lead- ers in the North had lost their heads, and their Babel of incoherencies merely aggravated the hopeless confusion. During the first weeks of December, 1860, at least forty bills, each promis- ing national salvation, were introduced into the House and Senate, and more futile propositions were probably never submitted to a legislative body. Every form of weak-kneed compromise from sentimental sop to abject surrender had its nervous advocate, and between Andrew John- son's puerile scheme of giving the Presidency to the South and the Vice-Presidency to the North, and vice versa, every alternate four years, and Daniel Sickles's wild-eyed pother about New York city's separation from the Union, every 293 LINCOLN THE LAWYER phase of political dementia was painfully ex- hibited. It was not only the mental weaklings who col- lapsed under the strain. There were men of force and character among the panic-stricken — men who bulked big in the national councils and whose reputation as lawyers and jurists stood firmly established. But in all the discussions concerning the legality of secession there was no note of authority in the utterances of the Union advo- cates, and the stout assertions of the secessionists for the most part passed unchallenged. Indeed, President Buchanan, who had achieved consid- erable distinction as a lawyer before his elevation to office, employed his legal talents to such poor advantage that he virtually argued against his own client, noting prohibitions, negations, and general impotency in every line of the Constitu- tion, but not seeing one word of help in it for the government he represented. As Seward re- marked, his long and argumentative message to Congress in December, 1860, conclusively proved, first, that no State had the right to secede unless it wanted to, and, second, that it was the Presi- dent's duty to enforce the law unless somebody opposed him. But Buchanan had the benefit of 294 AS PRESIDENT Stanton's distinguished, if ineffective, advice in the preparation of that very message, and Sew- ard himself, able lawyer though he was, com- pletely lost his head a few months later, his par- ticular mania taking the suicidal form of averting the civil perils by instigating a foreign war. Other distinguished members of the bar, like Reverdy Johnson, feeling the ground of pre- cedent slipping beneath their feet, stumbled for- ward shouting vague warnings against illegal steps of any kind, and Horace Greeley, almost beside himself with grief and fear, quavered out empty suggestions for conciliation which only increased the public perplexity. It was in the midst of all this deplorable help- lessness and distraction that Lincoln assumed his duties as head of the crumbling government, and of all the earnest supporters of the Union he alone displayed any calmness or presence of mind, and his inaugural address contained almost the first decisive utterance on the legal aspect of the situation. He was without any national reputa- tion as a lawyer, but his opening words were plainly indicative of his professional attainments. No State could, of its own motion, lawfully withdraw from the Union, he declared with firm- 295 LINCOLN THE LAWYER ness. It was not necessary that the Constitution should contain any express provision forbidding such action. Perpetuity was implied, if not ex- pressed, in the fundamental law of all national governments. No government proper ever had a provision in its organic law for its own termina- tion. But if the United States was not a govern- ment proper, but a mere association of States bound by an agreement in the nature of a con- tract, then the law of contracts applied. One party to a legal contract might violate it, break it, so to speak; but mutual consent of all the parties was necessary before it could be lawfully rescinded. Such was his simple, sane, lawyer-like state- ment of the law— so simple, indeed, that it sounded inadequate to the exigencies of the moment; but nothing in all the learned volumes which have since been written on the legal aspects of secession has ever contradicted or disproved it. Again with quieting firmness he handled the Dred Scott case, the Fugitive Slave Law, and the other legal questions in dispute, divesting them of all technicalities and disregarding their com- plicated refinements until he reached the real issues and showed that all the points in contro- versy could be adjusted by well-recognized prin- 296 AS PRESIDENT ciples of law. In a word, he placed the secession- ists for the first time on the defensive, appealed to the deep law-abiding sentiment of the American people, and afforded the supporters of the Union a firm, legal foothold. He knew the moral effect of a legal authority which the people could under- stand, and the importance of his clear, prompt an- nouncement can not be overestimated. But it was when he touched upon the frenzied proposals for compromise that his professional knowledge showed to best advantage. He had been repeatedly advised, after his nomination, to assure the South that he would do nothing to in- validate slavery, and when he refused to make any premature announcement of his policy, some of the knee-shaking compromisers introduced and passed an amendment in Congress to the effect that the Federal Government should never interfere with any domestic institution of the States, including that of persons held in slavery. Those who fathered this amendment firmly be- lieved it would reconcile the South, and con- sidered it of vital importance, while it met with a storm of denunciation from those who regarded it as an absolute surrender of basic principles. But Lincoln instantly saw that such a provision 297 LINCOLN THE LAWYER was powerless for either good or evil, and amounted to nothing more than a reaffirmation of the Constitution. The Federal Government had no power under the Constitution to interfere with any domestic institution of the States, and it was as puerile as it was superfluous to record the fact in a solemnly worded amendment. "Holding such a provision to now be implied con- stitutional law," Lincoln coolly remarked of the amendment, "I have no objection to its being made express and irrevocable." This plain, calm and gravely humorous ex- position of the legal aspects of the situation shows an experienced lawyer well grounded in the fundamental principles of law, and it ef- fectually stilled the warring factions in the North by demonstrating the emptiness of their dispute. Indeed, if argument could have averted the impending perils, Lincoln's initial utterance would have carried the day, for no one has ever challenged the findings of fact or overruled the conclusions of law of his first inaugural. It is a masterpiece of pleading which alone should en- title him to high rank in the profession. A few months after he had given this signal proof of professional ability, circumstances arose 298 AS PRESIDENT which subjected his legal qualities to a test of almost unparalleled severity, and had he not responded, the history of this country might not read as it does to-day. Shortly after Sumter was fired upon, but before any serious collision had occurred, England and France issued proclama- tions of neutrality, and this practical recogni- tion of the Confederacy, which aroused public indignation throughout the North, provoked Seward almost beyond endurance, and throwing caution to the winds, the great New York lawyer penned a note of instructions to the American minister in London, couched in such sharp and peremptory language that its presentation to the British authorities must have instantly resulted in the severance of all diplomatic intercourse. But the man to whom the angry Secretary sub- mitted his proposed despatch was a master of self-control, schooled by the discipline of the court-room until he was proof against all prov- ocation, and he calmly redrafted the instru- ment, in the quiet of his study. In its original form it was a hot-headed rebuke. It left his hands a model of diplomatic remonstrance— dignified and firm, exhibiting the reserve of a wise counselor sure of his own cause, but offering 299 LINCOLN THE LAWYER neither menace nor affront to the parties ad- dressed. No layman could possibly have worded that all-important paper with equal skill, and it is not too much to say that Lincoln's professional caution and astuteness saved a situation fraught with direst national perils. Certainly his inter- lineations, suggestions, and emendations, as they appear on Seward's manuscript, of themselves afford a lesson in legal sagacity and foresight worthy the closest scrutiny of every student of the law. The times demanded a lawyer, and a lawyer of ability. The average practitioner would have been appalled by the situation. Menacing legal obstacles were interposed to every act of the ad- ministration, new questions presented themselves for consideration at every turn, and a man with a smattering of legal knowledge or no legal knowl- edge at all might easily have been fretted to impotency by letting I -dare-not wait upon I- would, for precedents were wanting, and in the many imperious demands of the moment timidity or recklessness spelled equal ruin. There was no positive, adjudicated authority for calling out the militia to suppress civil insurrec- tion; there was no express provision supporting 300 AS PRESIDENT the proclamation of blockade ; no precedent could be cited for the muster of the three-year volun- teers ; and the power of the executive to increase the regular army and navy was seriously disputed, to say nothing of his right to suspend the writ of habeas corpus. The conditions were all new, but the situation admitted of no delay. Counsel were not wanting, but the ablest of them differed among themselves, and every shade of opinion was represented in the discussion of these and kindred questions. The extremists, free of all responsibility, were urgent for prompt action, heroic measures, martial law, and every other means, legal or illegal, to effect their purposes; the opposition was untiring in its demands for the judicial interpretation of each letter of the law. Under such circumstances it naturally fol- lowed that every exhibition of caution on the part of the administration was denounced as coward- ice and every decisive action was hailed as usur- pation. True to his training begun in the days when Stuart left him to answer his own questions in the dingy Springfield office, Lincoln did his own thinking on the momentous problems which he encountered, and he solved them without any attempt to shift responsibility for the result. He 301 Km^c^X: p^tA^t*-/ ~J enf cn~>s Q£er>~e>is cn*-eJ tSpjl4-uCs*JC' enf . Oi-*-*~vO ***' /ui^-e^^ C^U} A«--^" /2<^L<2e- £0^*/ &*- &>~) Ct^t-L-'} &-/5GZ £Zf(jO [10^2^r^> erf* P^-r &- 'lfi nr fl*~*&i (*~rv p*^£tZl~j /&rv sjH^* — *^* t ^P"~ Ifr-e-csC&L^ /L-Zz^-e^y •/Ktrv 4^siS»-C-l*^G> A"— "$ 0^&*e-es JCo-v^) t£-e*e~~s £*=«—& G-e^^-^-^-O; fh-ov t jzsxs-- C^fC^i «2*>C O^-crf &>**, A^A^tr*-^ Ct^(s2n>+j jC/i«; o-r/3 ajf t-^LC^y ^pLv»> of (&**» fuz^nr^J cr*^ of p-e~~~£ p^, A^cU~~y ££, ^K^^_a_£ (^^X-a-£/K~*~A^ CeO-vi—j^wA^*^ — 17 Ills. 206 The Illinois Central Railroad Co. v. The County of McLean 17 Ills. 291 Johnson v. Richardson 17 Ills. 302 Phelps v. McGee 18 Ills. 155 County of Christian v. Overholt . . . .18 Ills. 223 McConnell v. The Delaware M. S. Ins. Co. . 18 Ills. 228 The People v. Watkins 19 Ills. 117 Partlow v. Williams 19 Ills. 132 Illinois Central R. R. Co. v. Morrison & Crabtree 19 Ills. 136 Illinois Central R. R. Co. v. Hays . . .19 Ills. 166 The People v. Witt 19 Ills. 169 Sprague v. The Illinois River R. Co. . .19 Ills. 174* McDaniel v. Correll 19 Ills. 226 The People v. Bissell 19 Ills. 229 The People v. Hatch 19 Ills. 283 Wade v. King 19 Ills. 301 Kester v. Stark 19 Ills. 328 St. Louis, Chicago & Alton R. R. Co. v. Dalby 19 Ills. 353 Laughlin v. Marshall 19 Ills. 390 The People v. Ridgley 21 Ills. 65 325 APPENDIX III Tonica & Petersburg R. R. Co. v. Stein . 21 Ills. 96 Trustees of Schools v. Allen 21 Ills. 120 Crabtree v. Kile 21 Ills. 180 Town of Petersburg v. Metzker ... 21 Ills. 205 Young v. Ward 21 Ills. 223 Smith v. Smith 21 Ills. 244 Terre Haute & Alton R. R. Co. v. Earp . 21 Ills. 291 Brundage v. Camp 21 Ills. 330 Constant v. Matteson .22 Ills. 546 Leonard v. Adm'r of Villars 23 Ills. 377 Cass v. Perkins 23 Ills. 382 Ritchey v. West 23 Ills. 385 Miller v. Whittakcr 23 Ills. 453 Young v. Miller 23 Ills. 453 Gill v. Hoblit 23 Ills. 473 Kinsey v. Nisley 23 Ills. 505 Gregg v. Sanford 24 Ills. 17 Columbus Machine Manufacturing Co. v. Dorwin 25 Ills. 169 Columbus Machine Manufacturing Co. v. Ulrich 25 Ills. 169 Mr. Lincoln also appeared in Cunningham v. Fithian, 6 111. 269. His name was omitted in this case in the reports by an error. (See 7 111. 650.) He likewise appeared in Walker v. Herrick, 18 111. 570, and in State v. Illinois Central, 27 111. 64- (See Abraham Lincoln as Attorney for the Illinois Central Railroad Com- pany," a pamphlet published by the Illinois Central in 1905.) 326 APPENDIX III Mr. Lincoln also appeared in the following cases in the Federal Courts : Lincoln v. Tower 2 McLean 473 January v. Duncan 3 McLean 19 Sturtevant v. City of Alton • 3 McLean 393 Lewis v. Administrators of Broadwell . . 3 McLean 568 Voce v. Lawrence 4 McLean 203 Lafayette Bank v. State Bank of Illinois . 4 McLean 208 Moore v. Brown 4 McLean 211 Kemper v. Adams 5 McLean 507 United States v. Prentice 6 McLean 65 Columbus Insurance Co. v. Peoria Bridge Ass'n 6 McLean 70 United States v. Railroad & Bridge Co. . . 6 McLean 516 McCormick v. Manny .6 McLean 539 Of his 175 cases in the Illinois Supreme Court Mr. Lin- coln won 92 ; of his 1 2 cases in the United States Circuit Court final decision is reported iti only 10. Of these he won 7. Of his 3 cases in the United States Supreme Court he won 2. 327 INDEX INDEX Abolition, opinion on, 44 Adams, James, case against, 84 Admission to bar, 59-61, 117 Advice to Lawyers, 33, 76, 102, 199, 241 Alabama Arbitration, 307 Argument, Lincoln's first, 40 Ancestry, 1-7 Anderson, Major Robert, 47 x\ppellate courts, record in, Ap- pendix Apprenticeship, law, 70-81 Armstrong case, 229-234; trial of, 280 Army experience, 46-49 Arnold, Isaac M., 209, 228, 252, 261 Baddeley, case for, 80 Bailey v. Cromwell, 117 Baker, E. D., 89, 93, 128, 206 Beardstown, 231 Benjamin, Judah P., 278 Benjamin, Judge R. M., 60 Berry & Lincoln, 49 Birthplace, 7 Birthright to the law, 1-10 Black Hawk war, 46-48 Blackwell, Robert, 252 Blackstone's Commentaries, 50, 119 Blair, Montgomery, 272 Books, 9 Boonville Court, 16-19 Boutwell, George, 272 Boyhood, 6-8, 13, 14 Breckenridge, 18 Briefs, 40, 215, 247, 251-4; 256-7 Browning, O. H., 90, 206, 252 Buchanan, 97, 290, 294 Burr, Aaron, 33 Butterfield, Justin, 157 Calhoun, 51 Cameron, Simon, 286 Candidate, Lincoln as, 280-292 Cartwright, Peter, 145, 236 Case-lawyer, 129 Cases, Lincoln's first, 82; early, 82-95; in U. S. Supreme Court, 246; in Illinois Su- preme Court, 248; and Ap- pendix; jury, 202; Logan & Lincoln's, 125-6; Lincoln & Herndon's, 144; full record of, 248, and Appendix Cass, General, 47-9 Caton, Judge, 249 Chase, Salmon, 207 Chicago, cases in, 259, 261 ; Con- vention, 195, 285; Tribune, 260 Circuit, life on, 104-111 Circuit, riding the, 160-177 Clark, General Marston, 22 Clerkship, 96-103 Clientage, 196, 200, 248, 249 Competitors, early, 82-95 Congress, candidacy for, 127-9, 132; election to, 145; record in, 148-158 Congressional Dictionary, 146 Constitution, 296, 298 Cooper Union speech, 281, 282 Counsel for lawyers, 200 Court-houses, primitive Indiana, 19, 20; primitive Illinois, 62, 69 Court lawyer, Lincoln as, 109, 260, 268 Courts, early success in, 104-111 Crawford, 9 Criminal practice, 235 Cross examiner, Lincoln as, 221- 34 Curtis, George T., 272 Cullora, Shelby M., 236 331 INDEX D Davis, Judge David, 90, 94, 133, 172, 175, 178-84, 194-6, 212-3, 242 Decatur, 111., 27 Dey, Peter A., 260 Diekerson, E. H., 255 Dickey, Judge, 264 Dignity, 175 Dillworth, Caleb J., 232 Disorderly habits, 96-101 Douglas-Lincoln debate, 263-280 Douglas, Stephen A., 36, 60, 89, 93, 105, 110, 122, 229, 264, 265; his errors of law, 229, 277-280 Dred Scott case, 45, 269, 271-9, 281, 296 Drummond, Judge, 261 Dungee v. Spencer, 242-4 Dunn, Thomas F., 235-6 E Early practice, 56-61 Education, Lincoln's, 7-10, 197- 200 Edwards, N., 90 Eggleston, Edward, 229 Eighth Circuit, 167; map of, 169 Emancipation, compensated, 304-305 Ethics, Lincoln's professional, 31-5, 52-5, 102-3, 235-44 Euclid, study of, 198 Ewing, James, 193, 222 Examination for Bar, 59 Federal Courts, cases in, 327 Fees, 85, 144, 241-4 Fell, Jesse, 280 Ferguson, v. Kelso, 29 Ford case, 22 Ford, Governor, 60-61 Forsythe v. Reynolds, 246 Fraim, trial of, 235-6 Freeport questions, 275-6 Fugitive Slave law, 45, 296 Fuller, Samuel L., 261 Fun-maker, Lincoln as, 190-5 G Gentryville, 14 German, Lincoln's studv of, 197 Goodrich, Grant, 159, 161, 252 "Graysons, The," 229 Greeley, Horace, 295 Green, Bowling, 29-30, 57 Grub v. Crane, 131 H Haines, Hon. James, 186-7 Hall v. Woodward, 182 Hardin, John J., 90, 128 Harding, 255 Harrison, trial of "Peachy," 235-8, 282 Hawthorne v. Woolridge, 82-83 Herndon, William H., 132, 139- 44, 159-60, 175, 216, 236, 239, 285, 290, 292 Higgins, Van H., 261 Hingham, Lincolns of, 5 Hitt, Robert R., 221, 224, 260 Hoblit, James T., 224-6 "Honest Abe," 31 Hudson case, 24 Hurd v. Railroad Bridge Co., 259-60 Ideals of law, 31-34, 42-5 Illinois Central Railroad, 240, 251-254, 261, 268 ; case against, Appendix; v. McLean, 250, 268 Illinois primitive bench and bar, 56-69 Independence, 101 Indian fighting, 46-9 Indiana primitive bench and bar, 19-26; Revised Statutes, 10-13, 57 Ingersoll, Robert G., 192 Inspiration, professional, 13-18 Jefferson, Joseph, 87; Thomas, 99 Johnson, Andrew, 293; Reverdy, 255, 272, 295; v. Jones, 261 332 INDEX Joy, J. F., 250 Judd, N. B., 252, 286, 287 Judge, Douglas as a, 131; Lin- coln as a, 188-91 Judges, pioneer, 21-25, 62-68 Jury, 182, 215 Jury, backwoods, 20-21 Jury-lawyer, Lincoln as a, 100, 208-221 K Kelly v. Garrett, 132 Lacey, Lyman, 229 Latin, legal use of, 131 Law in the debate, 263-80; Lin- coln's knowledge of, 198, 267- 80; Lincoln's opinion on, 42-5; student, Lincoln as, 46-56 Leader of Bar, 196-207 Lecture on law, 33, 102-3 Legislature, 104; election to, 56- 58; first canvass for, 48; Illi- nois, 90 Lewis v. Lewis, 246 Library, 75 Lincoln & Herndon, 134-47; cases, 144 Lincoln, Nancy, 7; Robert T., 164; Thomas', 6; town of 133, 135; v. Illinois Central R. R., 252-4, Appendix Linder, General, 181 Litigation, dislike of, 102 Logan, Judge Stephen T., 60, 93, 105, 112-115, 183, 206, 236, 252, 258, 285; & Lincoln, 112-34 Logic, 263 Lovejoy, Elijah, 141 M McClernand, John A., 90, 236 McCormick reaper case, 207, 255-8 McDougall, James A., 81, 91, 94 Managing clerk, Lincoln as, 96- 102 Mast fed lawyer, 198 Memorials, Bar, Appendix Memory, 11, 12 Methods in court-room, 208-220 Metzker murder case, 229-234 Mississippi bridge case, 260 Missouri Compromise, 263-4 Morris, Buckner S., 261 Murder trial, primitive Illinois, 65-67 Murder Cases, 18, 65-7, 229-238 Myers Building, 160 Myths, 1-18 N Neutrality, International, 299 New Salem, 28, 35, 39 Nick name, 31, 175 O Oak Ridge Cemetery, 309 Offices, law, 74, 127, i60, 173, 292 Offutt, 28, 46 Oglesby, Richard, 206, 285 Opinions of contemporaries, Oratory, opinion of, 199, 216 Oregon, Governorship, 158 Orendorff, General A., 249-50 Orgmathorical Court, 176, 242 Palmer, John M., 206, 236, 283-5 Partnerships, 70-81; 112-33; 141, 147 Patent cases, 207, 255-8; 259 Peacemaker, Lincoln as, 102-3, 244, 307 People v. Green, 65-68 Pettifogging, 57 Phillips, Isaac N., 88 Polk, President, 151, 274 Poore, Ben: P., 158 Postmaster, Lincoln as, 96 Practice on the circuit, 200-7 Preparation for Bar, 75-81, 199, 246 President, Lincoln as, 293-310 Prince, E. M., 211 Psychic powers, Lincoln's, 227 Purple, Judge Norman, 252 °>83 oc« INDEX R Reconstruction, Lincoln on, 308-9 Record of cases, 248, and Ap- pendix Reputation at Bar, 199, 200, 208; 245-63 Revised Statutes of Indiana, 10-13 Reynolds, Judge John, 62-68 Rock Island Railroad, 249, 286 Rogers v. Dickey, 132 Sand Bar case, 261, 285 Sangamon County, 56, 60; River, 39-40 Santa Anna, 148-9 Schooling, 7-8 Scott, Dred, 45, 269, 271-9; 281, 296 Scott, Judge, 206 Scammon v. Cline, 78 Seward, 206, 294, 299 Shaw, J. Henry, 232-3 Shop keeping, 49-50 Smith, Caleb, 286 Speed, Joshua, 59, 175 Spot Resolutions, 151-4 Springfield, 19, 30, 48, 58, 69, 79, 84-5; 88, 125 Stanton, Edwin M., 206-7, 255-8 Stevenson, Adlai E., 285 Stories, 22-4, 123, 217-20, 248, 291 Story telling, 192-5 Stuart, Major John T., 48, 59, 71, 90, 206; & Lincoln, 59, 70- 81, 96-8 ; & Lincoln's fees, 85 ; & Lincoln's law office, 74 Student, Lincoln a law, 46-56 Supreme Court, U. S., cases in, 245-6 Surveying, 51, 56; legal opinion on, 52, 53 Swett, Leonard, 183, 206, 210, 212-3, 238, 285 Talisman steamer, 141 Taney, Judge, 246 Taylor, President, 154-6 Tazewell County, 182, 186 Technicalities, legal, 100 Temperament, 137, 138 Texas, 148-9 Thomas, W., 249 Thornton, James T„ 76 Training, 246 Treat, Samuel, 60, 164-5 Trent case, 121 Trumbull, Hon. Lyman, 90, 94 Turnham, 10 U Usury, opinions on, 41 Van Arman, John, 261 W Walker, William, 230 Wealth, opinioi.s on, 119 Webster, Daniel, 86, 158 Weldon, Judge Lawrence, 36-7, 170, 175, 188, 190, 212, 222, 242-3 285 Wells, H~ G., 209 Whitney, H. C, 188, 237 Williams, Archibald, 252 Wills, John A., 261 Wright case, 215 Wyant, trial of, 235 334 * 3