Table of Contents
On the Circuit
The requirements of the lawyer in that part of the country, at that date, were different from the requirements in any part of the world at the present date. The Hon. Joseph H. Choate, in a lecture at Edinburgh, November 13, 1900, said: “My professional brethren will ask me how could this rough backwoodsman ... become a learned and accomplished lawyer? Well, he never did. He never would have earned his salt as a writer for the ’Signet,’ nor have won a place as advocate in the Court of Session, where the teachings of the profession has reached its highest perfection, and centuries of learning and precedent are involved in the equipment of a lawyer.”
The only means we have of knowing what Lincoln could do is knowing what he did. If his biography teaches anything, it teaches that he never failed to meet the exigencies of any occasion. The study of his life will reveal this fact with increasing emphasis. Many a professional brother looked on Lincoln as “this rough backwoodsman,” unable to "become a learned and accomplished lawyer,” to his own utter discomfiture. We are justified in saying that if he had undertaken the duties of the Scots writer to the “Signet,” he would have done them well, as he did every other duty.
When Douglas was congratulated in advance upon the ease with which he would vanquish his opponent, he replied that he would rather meet any man in the country in that joint debate than Abraham Lincoln. At another time he said: “Lincoln is one of those peculiar men who perform with admirable skill whatever they undertake.”
Lincoln’s professional duties were in the Eighth Judicial Circuit, which then comprised fifteen counties. Some of these counties have since been subdivided, so that the territory of that district was larger than would be indicated by the same number of counties to-day. It was one hundred and fifty miles long and nearly as wide. There were few railroads, and the best county roads were extremely poor, so that traveling was burdensome. The court and the lawyers traveled from one county seat to another, sometimes horseback, sometimes in buggies or wagons, and sometimes afoot. The duties of one county being concluded, the entire company would move on to another county. Thus only a small part of his duties were transacted at Springfield.
These periodic sessions of the court were of general interest to the communities in which they were held. There were no theaters, no lyceums for music or lectures, and few other assemblages of any sort, excepting the churches and the agricultural fairs. It thus came about that the court was the center of a greater interest than would now be possible. It was the rostrum of the lecturer and the arena of the debate. Nor were comedies lacking in its multifarious proceedings. The attorney was therefore sure of a general audience, as well as of court and jury.
This peripatetic practise threw the lawyers much into one another’s company. There were long evenings to be spent in the country taverns, when sociability was above par. Lincoln’s inexhaustible fund of wit and humor, and his matchless array of stories, made him the life of the company. In this number there were many lawyers of real ability. The judge was David Davis, whose culture and legal ability will hardly be questioned by any one. Judge Davis was almost ludicrously fond of Lincoln. He kept him in his room evenings and was very impatient if Lincoln’s talk was interrupted.
There were two qualities in Lincoln’s anecdotes: their resistless fun, and their appropriateness. When Lincoln came into court it was usually with a new story, and as he would tell it in low tones the lawyers would crowd about him to the neglect of everything else, and to the great annoyance of the judge. He once called out: “Mr. Lincoln, we can’t hold two courts, one up here and one down there. Either yours or mine must adjourn.”
Once Lincoln came into the room late, leaned over the clerk’s desk and whispered to him a little story. Thereupon the clerk threw back his head and laughed aloud. The judge thundered out, “Mr. Clerk, you may fine yourself five dollars for contempt of court.” The clerk quietly replied, “I don’t care; the story’s worth it.” After adjournment the judge asked him, “What was that story of Lincoln’s?” When it was repeated the judge threw back his head and laughed, and added, “You may remit the fine.”
A stranger, hearing the fame of Lincoln’s stories, attended court and afterward said, “The stories are good, but I can’t see that they help the case any.” An admiring neighbor replied with more zeal and justice than elegance, “Don’t you apply that unction to your soul.” The neighbor was right. Lincoln had not in vain spent the days and nights of his boyhood and youth with Aesop. His stories were as luminous of the point under consideration as were the stories which explained that "this fable teaches.”
Judge Davis wrote of him that “he was able to claim the attention of court and jury when the cause was most uninteresting by the appropriateness of his anecdotes.” Those who have tried to claim Judge Davis’ attention when he did not want to give it, will realize the greatness of praise implied in this concession.
To this may be joined the remark of Leonard Swett, that “any man who took Lincoln for a simple-minded man would wake up with his back in the ditch.”
As Lincoln would never adopt the methods of his partner Herndon, the latter could not quite grasp the essential greatness of the former, and he uses some patronizing words. We may again quote Judge Davis: “In all the elements that constitute a great lawyer he had few equals ... He seized the strong points of a cause and presented them with clearness and great compactness.... Generalities and platitudes had no charms for him. An unfailing vein of humor never deserted him.” Then follows the passage already quoted.
Lincoln never could bring himself to charge large fees. Lamon was his limited partner (with the office in Danville and Bloomington) for many years. He tells one instance which will illustrate this trait. There was a case of importance for which the fee was fixed in advance at $250, a very moderate fee under the circumstances. It so happened that the case was not contested and the business required only a short time. The client cheerfully paid the fee as agreed. As he went away Lincoln asked his partner how much he charged. He replied, “$250.” “Lamon,” he said, “that is all wrong. Give him back at least half of it.” Lamon protested that it was according to agreement and the client was satisfied. “That may be, but I am not satisfied. This is positively wrong. Go, call him back and return him half the money at least, or I will not receive one cent of it for my share.”
One may imagine the amazement of the client to receive back one half of the fee. But the matter did not end here. The affair had attracted the attention of those near at hand, including the court. Judge Davis was of enormous physical size, and his voice was like a fog horn. The author writes this from vivid remembrance. Once in early youth he quaked in his shoes at the blast of that voice. The conclusion of the incident is given in the words of Lamon: “The judge never could whisper, but in this case he probably did his best. At all events, in attempting to whisper to Mr. Lincoln he trumpeted his rebuke in about these words, and in rasping tones that could be heard all over the court room: ’Lincoln, I have been watching you and Lamon. You are impoverishing this bar by your picayune charges of fees, and the lawyers have reason to complain of you. You are now almost as poor as Lazarus, and if you don’t make people pay you more for your services, you will die as poor as Job’s turkey.”
The event justified the Judge’s remarks. It was not unusual for Lincoln’s name, as attorney, to be found on one side or the other of every case on the docket. In other words, his practise was as large as that of any lawyer on the circuit, and he had his full proportion of important cases. But he never accumulated a large sum of money. Probably no other successful lawyer in that region had a smaller income. This is a convincing commentary on his charges.
The largest fee he ever received was from the Illinois Central Railroad. The case was tried at Bloomington before the supreme court and was won for the road. Lincoln went to Chicago and presented a bill for $2,000 at the offices of the company. “Why,” said the official, in real or feigned astonishment, “this is as much as a first-class lawyer would have charged.”
Lincoln was greatly depressed by this rebuff, and would have let the matter drop then and there had not his neighbors heard of it. They persuaded him to raise the fee to $5,000, and six leading lawyers of the state testified that that sum was a moderate charge. Lincoln sued the road for the larger amount and won his case. It is a matter of interest that at that time the vice-president of the railroad was George B. McClellan.
It was Lincoln’s habit always to go to the heart of a case. Quibbles did not interest him. The non-professional public who have attended jury trials will not easily forget the monotonous “I object” of the attorneys, usually followed by, “I except to the ruling of the court," and “The clerk will note the exception.” Lincoln generally met the objections by the placid remark, “I reckon that’s so.” Thus he gave up point after point, apparently giving away his case over and over again, until his associates were brought to the verge of nervous prostration. After giving away six points he would fasten upon the seventh, which was the pivotal point of the case, and would handle that so as to win. This ought to have been satisfactory, but neither Herndon nor his other associates ever got used to it.
Lincoln put his conscience into his legal practise to a greater degree than is common with lawyers. He held (with Blackstone) that law is for the purpose of securing justice, and he would never make use of any technicality for the purpose of thwarting justice. When others maneuvered, he met them by a straightforward dealing. He never did or could take an unfair advantage. On the wrong side of a case, he was worse than useless to his client, and he knew it. He would never take such a case if it could be avoided. His partner Herndon tells how he gave some free and unprofessional advice to one who offered him such a case: “Yes, there is no reasonable doubt but that I can gain your case for you. I can set a whole neighborhood at loggerheads; I can distress a widowed mother and her six fatherless children, and thereby get for you six hundred dollars, which rightfully belongs, it appears to me, as much to them as it does to you. I shall not take your case, but will give a little advice for nothing. You seem a sprightly, energetic man. I would advise you to try your hand at making six hundred dollars in some other way.”
Sometimes, after having entered on a case, he discovered that his clients had imposed on him. In his indignation he has even left the court room. Once when the Judge sent for him he refused to return. "Tell the judge my hands are dirty; I came over to wash them.”
The most important law-suit in which Lincoln was ever engaged was the McCormick case. McCormick instituted a suit against one Manny for alleged infringement of patents. McCormick virtually claimed the monopoly of the manufacture of harvesting machines. The suit involved a large sum of money besides incidental considerations. The leading attorney for the plaintiff was the Hon. Reverdy Johnson, one of the foremost, if not the foremost, at the bar in the entire country. It was the opportunity of crossing swords with Johnson that, more than anything else, stirred Lincoln’s interest. With him, for the defense, was associated Edwin M. Stanton.
The case was to be tried at Cincinnati, and all parties were on hand. Lincoln gave an extraordinary amount of care in the preparation of the case. But some little things occurred. Through an open doorway he heard Stanton make some scornful remarks of him,–ridiculing his awkward appearance and his dress, particularly, for Lincoln wore a linen duster, soiled and disfigured by perspiration. When the time came for apportioning the speeches, Lincoln, although he was thoroughly prepared and by the customs of the bar it was his right to make the argument, courteously offered the opportunity to Stanton, who promptly accepted. It was a great disappointment to Lincoln to miss thus the opportunity of arguing with Reverdy Johnson. Neither did Stanton know what he missed. Nor did Johnson know what a narrow escape he had.
This chapter will not be complete without making mention of Lincoln’s professional kindness to the poor and unfortunate. Those who could find no other friends were sure to find a friend in Lincoln. He would freely give his services to the needy. At that time the negro found it hard to get help, friendship, justice. Though Illinois was a free state, public opinion was such that any one who undertook the cause of the negro was sure to alienate friends. Lincoln was one of the few who never hesitated at the sacrifice.
A young man, a free negro living in the neighborhood, had been employed as cabin boy on a Mississippi river steamboat. Arriving at New Orleans, he went ashore without a suspicion of what the law was in a slave state. He was arrested for being on the street after dark without a pass, thrown into jail, and fined. Having no money to pay the fine, he was liable to be sold into slavery, when his mother, in her distress, came to Lincoln for help. Lincoln sent to the governor to see if there was no way by which this free negro could be brought home. The governor was sorry that there was not. In a towering wrath Lincoln exclaimed: "I’ll have that negro back soon, or I’ll have a twenty years’ excitement in Illinois until the governor does have a legal and constitutional right to do something in the premises!”
He had both. He and his partner sent to New Orleans the necessary money by which the boy was released and restored to his mother. The twenty years’ excitement came later.