Abraham Lincoln, the lawyer-statesman

Preface

THIS volume is not a biography, but is intended only as a presentation of the results of an investigation into the record of Abraham Lincoln'as a lawyer, his views upon the subjects of universal suffrage and the reconstruction of the Confederate State Governments at the close of the Civil War, and his attitude toward the judiciary, upon which there has been considerable misunderstanding in recent years. To these has been added a chapter devoted to some consideration of his standing as an orator.

Many biographies of Lincoln have been written, but no adequate review of the subjects before mentioned has appeared. It has been frequently said that Lincoln was not a great lawyer. Much misinformation is current in relation to Mr. Lincoln's career at the bar. Indeed, statesmen and lawyers of renown, relying upon the erroneous statements of some of Lincoln's contemporaries, have been led to underestimate greatly his standing as a member of the legal profession. The facts presented in this volume, it is believed, will remove the erroneous impression which has been thus created, and convince vi PREFACE

even the most skeptical that Mr. Lincoln was one of the truly great lawyers of his generation.

The attitude of the great President toward the Southern States throughout the Civil War, and in relation to the reconstruction of state governments in them, was always friendly. He sought to aid and encourage those States to reestablish themselves as members of the Union. He was never inclined to force negro suffrage upon them, but believed that the States should be left free to grant or withhold the right of suffrage as each State might determine for itself. The facts clearly prove that Mr. Lincoln was opposed to the system which has become known as " Carpet-Bag Government," but believed that the loyal white citizens of every State should be allowed to control its political affairs. It has been said that he favored woman's suffrage also, but there is not sufficient evidence to warrant this conclusion, as will be seen from a perusal of these pages. Lincoln's criticism of the decision of the Supreme Court of the United States, in the case of Dred Scott vs. Sanford, has been often referred to in recent years as a justification for assaults upon the courts, but a careful review of all that he said upon that subject shows that he was a firm believer in and champion of the independence of the judiciary.

This volume is submitted in the hope that it will

PREFACE vii

lead to a better understanding of the subjects of which it treats. The accomplishment of this purpose is all that the author has attempted, and the attainment of that end will furnish ample justification for an undertaking which has been inspired by a desire to aid in doing complete justice to the memory of the great President.

JOHN T. RICHARDS

Chicago, February, iqi6.

Contents

I. LAYING THE FOUNDATION I

II. IN THE COURTS 16

III. THE LAWYER-PRESIDENT 88

Chapter II

AT the time of Mr. Lincoln's admission to the . bar of Illinois he had just entered upon the twenty-ninth year of his age. He had been a resident of the State seven years and at that time was serving his second term as a member of the lower house of the state legislature. The proceedings in all the courts of Illinois were then much less dignified and formal than they have since become in all courts of record. Judges and lawyers held more intimate social relations than can well prevail between members of the bar and the busy members of the judiciary at the present day.

The opening of the Circuit Court in any county of the State at that time brought together many of the people from the surrounding country, and as there were few places of amusement where the evenings could be whiled away, all gathered about or within the country tavern and there regaled each other with songs and anecdotes. When evening came it was not thought improper for the judge who had presided as the minister of justice during the day to cast aside judicial dignity and join with his professional brethren in unrestrained efforts to contribute his share toward the impromptu entertainment of those assembled.

Life on the circuit in those days, as in every new community, had its sunshine and its shadow; but every hardship had its compensation in the goodfellowship which always prevailed among those sturdy pioneers. The judge was usually a man of genial personality and entered heartily into every enterprise which promised to afford relief from the day's monotony. That they did so detracted not in the least from the respectful deference due them, as the representatives of the judiciary; for when the moment arrived for the opening of court, they resumed their seats on the bench with due solemnity; nor were they less impartial in hearing and determining the cases before them for having mingled with their professional brethren and their clients upon a common level during the time which intervened between the sessions of the court.

The experiences of Mr. Lincoln on the circuit were not unlike those of other lawyers of that day. At the time he began the practice of his profession there was little business which required great skill or much learning in the law. The interests involved in civil cases were chiefly trivial, if measured by a monetary standard, but they involved many of the same principles of law and equity that invite the attention of the courts and demand the professional consideration of the lawyers of to-day. The catalogue of statutory crimes has been greatly enlarged in both state and nation since those primitive times, and many acts then thought to be morally sound are now condemned by the moral sense of the people and denounced by statute as crimes against the state. By reason of this there has been a vast increase in the business of the criminal courts, and the great development of higher ideals, which an enlightened public opinion demands shall control the methods of conducting commerce and business of all kinds, has created means for affording more effective protection to property rights, such as were unknown in those early days. As a result, the labors of the legal profession, and the jurisdiction of the courts in civil and criminal cases, have been much enlarged.

There were in those days no large manufacturing corporations. Transportation of both passengers and freight was chiefly accomplished by steamboats and flatboats on the navigable streams, or overland by animal power. Luxuries were almost unknown, and the wants of the people were easily satisfied. No lawyer, however prominent in his profession, deemed the most insignificant case unworthy of his professional attention, and each attended to whatever business came to him, whether his services were required before a justice of the peace or before the Supreme Court — then as now the highest tribunal of the State; and Mr. Lincoln was no exception to this rule.

In the nisi prius courts Mr. Lincoln was called upon to try a great variety of cases. There were in those days no "specialists" among the members of the bar of Illinois. Railroads and other vast corporate interests, as commonly understood to-day, were almost unknown in the western country; but whatever the class of litigation might chance to be, whether civil or criminal, the lawyer of that period prepared himself as best he could to render efficient service to his client.

When Mr. Lincoln was admitted to the bar of Illinois, he was in the midst of his second term of service in the legislature of Illinois and had already acquired a considerable reputation as a member of that body. He was known as a fluent speaker and effective debater and was accustomed to address popular assemblages. The newspapers of those days were few in number and made little pretense of contributing much toward the education of the people as a whole. The people assembled at public meetings to listen to a discussion of the questions of the day by the most gifted orators of the time, and it was in these discussions that the friendly rivalry between Abraham Lincoln and Stephen A. Douglas began.

The same people listened to the speeches on both sides of every proposition which was of general interest, and thereby became better able to decide for or against the policy which was advocated by one and opposed by the other. As a consequence of this there existed among the people a more comprehensive appreciation of the importance of all public questions than prevails in this generation, when each obtains his information from his favorite newspaper, whose editorial opinions he accepts without reserve and generally adopts as his own, without taking the time or trouble to investigate the arguments of those who hold opposite or divergent views.

It was shortly before Mr. Lincoln's admission to the bar that De Tocqueville wrote his "Democracy in America." At that time the lawyers of respectability throughout the United States were, in their respective communities, leaders of public opinion, and the great Frenchman, recognizing this fact, declared that "As lawyers constitute the only enlightened class which the people do not distrust, they are naturally called upon to occupy most of the public stations." Lincoln, Douglas, and many other lawyers of that day were of that type, and when they spoke the people listened to the arguments of each and were in a position to form their own opinions by the exercise of independent judgment. The art of public speaking was therefore a most important, if not an almost indispensable, qualification in a lawyer who hoped for success in his profession. Mr. Lincoln early cultivated that art and soon acquired a wide reputation as an advocate at the bar and as an orator and political leader. He was frequently associated with or opposed to many of the ablest and best-known members of the bar of Illinois on the platform in political campaigns, in the trial courts, and in the highest court of the State. His reputation as an advocate before a jury was recognized by his professional brethren as of a very high order.

Stephen A. Douglas declared that Mr. Lincoln had no equal as an advocate before a jury. Leonard Swett, himself one of the greatest advocates and a trial lawyer seldom equaled by any man of his generation, — to many of whose arguments the writer has listened with rapt attention, — has said that if Lincoln ever had a superior before a jury, — and the more intelligent the jury the better he was pleased, — he, Swett, never knew him. Mr. Swett went further and declared that in his younger days he had listened to Tom Corwin, Rufus Choate, and many others of equal standing at the bar, in the trial of cases, but that Mr. Lincoln at his best was more sincere and impressive than any of them, and that what Mr. Lincoln could not accomplish with a jury no other man need try.

Judge David Davis, the circuit judge for the old Eighth Judicial Circuit of Illinois during the greater part of the time that Mr. Lincoln traveled that circuit, continually trying cases in the several counties of which it was composed, and who was appointed a justice of the Supreme Court of the United States by President Lincoln, said, "In all the elements that constitute the great lawyer he [Lincoln] had few equals. He was great both at nisi prius and before an appellate tribunal."

Thomas Drummond, for many years judge of the Circuit and District courts of the United States in Illinois, than whom no greater trial judge ever sat upon the bench, and before whom Mr. Lincoln tried many cases, affirmed that he was one of the ablest lawyers he had ever known.

Mr. Lincoln often appeared in the argument of cases before the Supreme Court of Illinois while Judges Sidney Breese and John D. Caton were members of that court. Both had unusual opportunities to judge of his standing as a lawyer, for in those days cases were argued orally in that court much

LEONARD SWETT more frequently than in later years, and the estimate of these two distinguished men as to his standing and ability as a lawyer is of great value.

In speaking of the professional standing of Mr. Lincoln, Judge Caton said: —

The most punctilious honor ever marked his professional life. His frankness and candor were two great elements in his character which contributed to his professional success. If he discovered a weak point in his cause, he frankly admitted it, and thereby prepared the mind to accept more readily his mode of avoiding it. He was equally potent before the jury as with the court.

Judge Breese declared : —

Mr. Lincoln was never found deficient in all the knowledge requisite to present the strong points of his case to the best advantage, and by his searching analysis make clear the most intricate controversy. There was that within him glowing in his mind, which enabled him to impress with the force of his logic, his own clear perception upon the minds of those he sought to influence.

Mr. Lincoln was not what is termed a "case lawyer," which is defined by the Standard Dictionary as a lawyer "better versed in reported cases." He did not, as some lawyers do, rely wholly or chiefly upon decided cases or precedents. But the statement made by some of his biographers that he was not a well-read lawyer and not well grounded in the principles of the law, is an error, for no careful student of Mr. Lincoln's career at the bar can arrive at any other conclusion than that he was thoroughly familiar with the standard works of his day on the various branches of the law. He had read them all to good purpose and understood the legal and equitable principles which they laid down.

A distinguished United States Senator declared, in an address at Springfield, Illinois, February 12, 1909, that he did not believe Lincoln was a great lawyer, giving as a reason for that belief that "he practiced law without a library," etc.1 It is true that he owned few law books, but he had access to the library of the Supreme Court of Illinois at Springfield, and whenever he had any matter in hand which required special research, he availed himself of the use of that ample library; so that, whenever he appeared in court, he was fully prepared to present his side of the case to the very best advantage.

All of Lincoln's biographers admit that he possessed a wonderfully logical mind, an equipment not infrequently lacking in lawyers who have met with unusual success in that profession, if success be measured by the amount of business passing through their hands. To him the common law was, in fact as well as in name, "the perfection of reason," 1 Senator Dolliver before the Lincoln Centennial Association.

and a court of equity was in reality "a court of conscience." He was not in the habit of citing a great number of authorities on any proposition, but depended chiefly upon the statement of the principles and the presentation of the reasons for the rule for which he contended, as well as for its application to the case before the court. His strong common sense and clear understanding of the principles of the common law enabled him to see clearly what the law ought to be, and with all the force of his great mind he endeavored with invincible logic to convince the court of the correctness of his contention. Or, if the case were one involving the principles of equity, his appeal was to the conscience of the court to right a wrong which had been committed, or to prevent an impending injury.

Like other high-class lawyers of his time, Mr. Lincoln tried on the circuit cases of every kind, both civil and criminal. His success in the defense of persons charged with crime seems to have been extraordinary, for while his contemporaries inform us that he defended many such cases, the records of the Supreme Court of Illinois reveal the astonishing fact that he never appeared in that court on behalf of any person charged with a felony. Had he been defeated in such cases in the trial court, in many instances, it is scarcely conceivable that some of them would not have been taken by appeal or writ of error to the Supreme Court and that he would not have appeared as counsel in that court on behalf of the accused.

It has been said that Mr. Lincoln never knowingly defended a person charged with crime unless he believed the accused to be innocent. This may be true, and if so, it will account in some measure at least for the fact before stated. The only other explanation must lie in his great ability as an advocate, in that power to win before a jury, mentioned by Mr. Swett and others.

In his career at the bar Mr. Lincoln crossed swords in the arena of his profession with the greatest lawyers of his time. Among them were Orville H. Browning, who succeeded Stephen A. Douglas as United States Senator from Illinois; James A. McDougall, United States Senator from California during the Civil War; Edward D. Baker, a United States Senator from Oregon, who was subsequently killed at the battle of Ball's Bluff while a colonel of volunteers in the war between the states; Stephen T. Logan, at one time a circuit judge and for many years the leader of the bar of Central Illinois; Leonard Swett, who, through many years, ending only with his death, was one of the acknowledged leaders of the bar of the Northwest, if not of the nation;

ISAAC G. WILSON

Lyman Trumbull, at one time a justice of the Supreme Court of Illinois and who served as United States Senator from Illinois during the whole period of the Civil War and was recognized as one of the ablest constitutional lawyers in that assembly, which, during that period, numbered among its members probably the greatest aggregation of profound lawyers ever gathered together in one legislative body; J. T. Stuart, at one time a member of Congress, who was acknowledged by all who knew him to be a worthy opponent in any legal battle; Burton C. Cook, afterwards general counsel for the Chicago and Northwestern Railway Company; Isaac G. Wilson, a profound lawyer, who, upon the organization of the Illinois Appellate Court in 1877, became one of the judges of that intermediate court of appeal in civil and quasi-criminal cases, and who was for many years a judge of the Circuit Court; and many others whose names are impressed upon the jurisprudence of the State of Illinois, and with all of whom Mr. Lincoln held the most cordial relations.

Mr. Lincoln was also at one time one of the counsel for the Illinois Central Railroad Company, and in that capacity was recognized as a lawyer of no ordinary learning and ability. In a little volume issued by that company it is stated that Mr. Lin-

28 LINCQLN, THE LAWYER-STATESMAN

coin's opinion was sought by the officers of the company upon important questions involving the construction of the company's charter. Among other matters of interest which the volume contains is a photographic copy of an opinion given by Mr. Lincoln on the rights of settlers under the national preemption laws and the relative rights of the railroad company growing out of grants made to the latter. The questions were complicated, but the opinion was short and concise. It reveals abundant evidence of careful research and a thorough familiarity with the legal questions involved, and is in entire harmony with an opinion afterwards rendered by the Supreme Court of Illinois in the case of Walker vs. Hedrick,1 which involved a decision of the same questions.

Mr. Lincoln was employed in many cases in the United States Circuit and District courts at Chicago, but in consequence of the destruction of the records of those courts by the great fire of October 9, 1 87 1, it is impossible to obtain an extended record of his activities there.

It is probable, however, that the most important case with which Mr. Lincoln was connected in either of the Federal courts was the case of Hurd vs. Rock Island Bridge Company, the trial of which began

* 18 111. 570.

September 8, 1857, before Mr. Justice McLean, who was then a justice of the Supreme Court of the United States and was one of those who dissented from the conclusions reached by the majority of the judges of the latter court in the case of Dred Scott vs. Sanford.

The counsel on behalf of the plaintiff were Hon. H. M. Wead of Peoria, Illinois; T. D. Lincoln of Cincinnati, Ohio, familiarly known as "Tim" Lincoln, one of the ablest and best-known admiralty lawyers of that day; and Corydon Beckwith of Chicago, afterwards a judge of the Supreme Court of Illinois, and at a later date general counsel for the Chicago, Alton and St. Louis Railroad Company. The counsel for the defendant were Norman B. Judd, of Chicago, afterward one of the chief promoters of Mr. Lincoln's campaign for the presidency; Joseph Knox of Rock Island; and Abraham Lincoln.

The case attracted unusual interest, not only because of the importance of the questions involved and the rivalry between the city of Chicago and the river towns, especially St. Louis, but on account of the eminence of the counsel employed on both sides. In the issue of the Chicago Daily Press of September 8, 1857, there appeared the following editorial : —

The important suit brought by the owners of the Effie Afton against the Rock Island Bridge Company opens before the United States District [Circuit] Court to-day. It will excite much attention among all in railroad and river interests of the West and Northwest. We have made such arrangements as will secure for our readers a full synopsis of each day's proceedings. The evidence is very voluminous and mostly by depositions. A share, however, will be oral. Messrs. Wead of Peoria and Lincoln of Cincinnati are the prominent counsel for the plaintiffs. Messrs. Judd and "Abram" Lincoln of this city and state appear on behalf of the bridge company.

It is a singular fact that until after Mr. Lincoln was nominated for the presidency there were comparatively few who knew that his Christian name was Abraham. Up to that time he habitually signed, "A. Lincoln," and it was not uncommon to see his name in print as "Abram Lincoln." After his nomination to the presidency he undertook to correct this very common error. In a letter to Hon. George Ashmun, chairman of the convention which nominated him, dated June 4, i860, he stated: —

It seems as if the question whether my first name is "'Abraham" or "Abram" will never be settled. It is "Abraham" and if the letter of acceptance is not yet in print, you may, if you think fit, have my signature thereto printed "Abraham Lincoln."

It appears from the files of the Chicago Daily Press that the time of the court was occupied from

T. D. LINCOLN day to day until September 20 in the presentation of the evidence, and that on the morning of September 21, 1857, the arguments were begun. During the introduction of the evidence questions of law which arose from time to time were argued by Messrs. Knox and Abraham Lincoln on behalf of the defendant and on behalf of the plaintiff by Messrs. Wead and T. D. Lincoln. Some of these questions were important and were argued at considerable length by the gentlemen who participated from time to time in these discussions.

This case was of absorbing interest to the river towns as well as to those centers of population whose future prosperity was dependent upon the development of railroad transportation. The people of the country were divided in accordance with local self-interest. The people of St. Louis, Cincinnati, and other cities and towns similarly situated believed that, if the railroad companies were permitted to build bridges across the navigable rivers of the country, they would lose the commercial advantages which they had enjoyed from traffic upon the Mississippi and the Ohio rivers ; and the owners of the steamboats, who, for many years had enjoyed a monopoly of the transportation of freight from points west of the Mississippi, foresaw that, if the railroads were to be allowed to transport freight from the vast territory west of that great artery of commerce, across that river and through to the eastern seaboard, without the expense of reloading on the banks of the streams over which it must pass to reach its destination, that monopoly would be destroyed. Hence the interests referred to combined in the case against the bridge company for the purpose of preventing the building of other bridges which would further interfere with river traffic.

The contention of the plaintiff was that the building of piers in the river constituted an obstruction to navigation; and while the particular case here mentioned was a suit to recover damages which were sustained by the owners of the steamboat Effie Afton, in consequence of that steamboat having been driven by the current, as was claimed, against a pier of the bridge at Rock Island, it was hoped by the plaintiff and those in sympathy with him that such an amount of damages would be recovered as to make the maintenance of that and other bridges across the navigable streams unprofitable to the railroad companies, thereby compelling them to unload their freight on the banks of the rivers, transport it across by ferry-boats, and reload it for shipment to the points of destination. If this could have been accomplished, the cost of transportation by railroad would have been made prohibitive and the steamboat monopoly would have continued.

For these and similar reasons the war between the respective interests was relentless, and it is safe to say that those in control of both sides of the controversy employed the best legal talent obtainable; so that the case, which was familiarly known as the "Erne Afton Case," attracted general attention. The Cincinnati Enquirer called attention to it, under the headline EFFIE AFTON CASE, as follows : —

This important case, to which the attention of the whole country has been directed, will be tried Tuesday at Chicago. Judge McLean leaves Cincinnati to-day for the purpose of opening court. The decision will appear in this paper as soon as ascertained by us.

The same newspaper in its issue of September 17, 1857, contained the following news item: —

The Effie Afton case. This famous case is exciting much interest in Chicago. The trial is slowly progressing in the United States Circuit Court at that place. On Friday last the depositions of George Neare and David Brickell, Pittsburg captains, were read. They united in saying that the Rock Island bridge was the greatest obstruction on the western waters, — worse than the Rapids. The testimony thus far goes to show that the bridge is a serious obstruction — that the Effie Afton was worth $50,000 — that she was a first-class boat, and that at the time the accident occurred, she was as well managed as could be.

The trial of this case was not concluded until September 24. The charge to the jury by Mr. Justice McLean was published in full in the issue of the Chicago Daily Press of September 25, and occupied nearly four columns of that paper. The same issue contained also the announcement that the jury [had disagreed, and the following editorial comment with reference to the case : —

The trial, lasting as it did for weeks, seemed to be occupying an unnecessary amount of time ; but it must be remembered that grave interests were at stake, not to be treated in a hasty manner, and worthy of the most patient and searching investigation. It was fitting that a case of such magnitude should be heard before such a court — John McLean, a man of whom not only the Supreme Court, but the nation, may be proud. The counsel employed on both sides were among the most distinguished members of the bar in the country, and in conducting the case and arguing it before the jury they fully sustained themselves. Mr. Judd, who managed the case on the part of the defense, and Mr. Lincoln of Cincinnati, on the part of the plaintiff, displayed untiring industry and great ingenuity. Mr. A. Lincoln, in his address to the jury, was very successful, so far as clear statement and close logic was concerned.

The Cincinnati Gazette also contained reports, from time to time, of the progress of the case, and finally, on September 29, published copious extracts from the charge of Judge McLean and the announcement of the disagreement and discharge of the jury, while the Cincinnati Enquirer of September 30, after giving the important points in the judge's charge, stated editorially: "The charge is clear and explicit, and how an intelligent jury could have failed to agree is a matter of mystery." The Cincinnati newspapers mentioned gave a summary of the testimony favorable to the river-men, and their opposition to the railroads was quite as apparent as the fact that the Chicago press was opposed to the contentions of the river-men.

The intense feeling which had been excited between the contending interests is revealed by the Chicago Daily Press of September 26, 1857, which contained an extended editorial comment upon the case, in the course of which it said: —

The combination initiated by the St. Louis Chamber of Commerce at its meeting on the 16th of December last, one object of which was the rigorous prosecution of the Effie Afton suit, was represented by three of the committee at this trial, who carefully supervised the proceeding during its progress and gave to the lookeron the impression that Captain Hurd and other plaintiffs were mere spectators of the fight. The declaration on our streets by two members of the committee that half a million of dollars had been subscribed under lead of the St. Louis Chamber of Commerce by the river interests between Pittsburgh and St. Paul to prosecute this suit to the bitter end, to institute another proceeding against the bridge company in the name of one of the company, and to resist the attempt to construct any more bridges across the Mississippi River, shows such a fanatical intent to accomplish an object regardless of right or justice that we deem it our duty thus specifically to direct public attention to it. The iron bands that connect the East with the West are to be severed at the Mississippi — every ton of freight that passes in either direction must have an additional dollar added to its cost to be paid by the consumer, and all at the dictation of the St. Louis Chamber of Commerce. That additional dollar added to its cost might send the ton of freight to St. Louis instead of Chicago. Shall it be added? Will the great east and west lines of transportation and commerce stand idly by and see that result produced ? Shall Iowa, Minnesota, and Northern Missouri be taxed for all time to come for the benefit of a single town on the banks of the Mississippi? The first grapple with that monopolizing spirit had taken place, and nine men upon the jury stood for the great principle that rail transportation and traffic are to be as much protected as in the past up and down the river and that the rights of commerce must be carefully guarded in each instance.