In the 1850s, Lincoln scoured newspapers daily, perhaps more voraciously than ever before. He was rarely home, spending most of his time in his law office, reading, writing briefs, arguing cases in court, and traveling the circuit. Sometimes, Herndon thought, he was too wrapped up in his own thoughts and business. Herndon had to hear everything Lincoln read, too: “Lincoln never read any other way but aloud,” he complained. “This habit used to annoy me beyond the point of endurance.”31 Herndon recalled that, when he arrived at work at seven every morning, he found Lincoln reading newspapers. “Lincoln’s favorite position when unraveling some knotty law point was to stretch both of his legs at full length upon a chair in front of him,” wrote Herndon, and “in this position, with books on the table nearby and in his lap, he worked up his case.”32 Herndon was also annoyed when Lincoln’s “brats,” Tad and Robert, came to visit the office. They tore books, newspapers, and legal materials apart, and even peed on the floor.33
Others noted Lincoln’s absorption in the written word. “He would pick up a book and run rapidly over the pages, pausing here and there,” remembered a clerk, “at the end of an hour—never, as I remember, more than two or three hours—he would close the book, stretch himself out on the office lounge, and with hands under his head, and eyes shut, he would digest the mental food he had just taken.”34
One of the few books Lincoln read in its entirety in the 1850s was Euclid’s classic work on geometry, an odd choice for most people, but Lincoln believed it would sharpen his mind, making his thinking more logical, rigorous, and organized as he figured out the next steps he had to take in order to return to the nation’s capital. Given that the former land surveyor thought of others as objects to be moved and replaced, the study of angles and congruencies might have offered an interesting, if literally tangential, amusement.
III
* * *
William Herndon was few people’s idea of a good lawyer. In Lincoln’s earlier associations, he had been the junior partner to older and more experienced men—John Todd Stuart and Stephen Logan. Stuart was gone for much of the time, serving in Congress while Lincoln ran both the law office and Stuart’s campaigns. With Logan, Lincoln again ran the law office, but the partnership foundered in part because both of them wanted to run for Congress. Herndon was different. He was as surprised as anyone when Lincoln invited him to be his partner. He came from a long line of opiniated Jacksonian Democrats; worse, he was an angry drunk and notoriously untactful. He alienated Mary Todd for life when in 1837 he first met her at a ball where he asked her to dance but told her that she “seemed to glide through the waltz with the ease of a serpent.” She never forgave him for the comparison.
Lincoln chose Herndon because he was “a laborious, studious young man . . . far better informed on almost all subjects than I have ever been.”35 He loved books as much as Lincoln did and had one of the best private libraries in Springfield, filled with law books; the works of English historians; translated writings of great Western philosophers, such as Kant; works on political economy by John Stuart Mill and Henry Carey, who had built the economic underpinnings of Clay’s American System; and great literature, including the works of Shakespeare and everything that the essayist Ralph Waldo Emerson and the preacher Henry Ward Beecher, among others, had published. It is unclear how much of the library Lincoln read, though, later as president, he was evidently familiar with Carey’s economics and Beecher’s sermons. Lincoln and Herndon were opposites who in theory complemented each other: Lincoln believed in “cold, calculating, unimpassioned reason,” while Herndon was intuitive, disposed, in Lincoln’s estimation, to “see the gizzard of things.”36 Herndon claimed that he could predict the future in his bones, leading Lincoln to joke regularly upon seeing him first thing in the morning, “Billy—how is your bones philosophy this morning?”37 Herndon knew how to keep the books and, perhaps most important, was eager to serve Lincoln’s every need.
The First Judicial Circuit, which Lincoln had crisscrossed numerous times as a young lawyer, had been merged with the Eighth Circuit, which consisted of fifteen counties. Lincoln was the only lawyer who rode the entire territory. His old friend David Davis, who had become a judge in 1848, oversaw the circuit and did almost all the judging in it. The other lawyers who frequently rode with Lincoln—Leonard Swett, Nathan Judd, Ward Hill Lamon, and sometimes Stephen Logan and Orville Browning—were lifelong friends and fellow Whigs. (John Stuart Todd sometimes rode the circuit as well, though his political leanings were shifting, and he was increasingly aligning more with the Democrats, including his onetime rival Stephen Douglas.)
Lincoln enjoyed the travel and the camaraderie, and his companions came as close as any group to being Lincoln’s kitchen Cabinet. Nevertheless, every evening Lincoln kept up an active correspondence. His work took him away from Springfield and his family for nearly six months of the year: three months each spring and each fall. Looking back at that time many years later, Davis said, “Lincoln was as happy, as happy as he could be.”38
Lincoln’s law practice was varied. Some cases were much bigger than others, some clients had more money than others, some cases were more interesting than others, and Lincoln immersed himself more deeply into some cases than others. He represented masters seeking the return of their slaves and slaves who had escaped their bondage. By the late 1850s, Lincoln started avoiding fugitive-slave cases, though in 1856 or early 1857 he agreed to help a woman whose son faced enslavement in New Orleans by raising money to secure the young man’s freedom. During the 1850s, Lincoln and his partner “appeared in at least 133 cases concerning railroads—sometimes representing the roads, and sometimes opposing them. The most famous of these cases involved the Illinois Central Railroad; Lincoln & Herndon, as attorneys for the railroad, received what was then the enormous fee of $5000 for their services. It, like all other fees, was divided equally between the partners.”39 They also represented small banks, debt collectors, spouses in divorce cases, and once Orville Browning, who had tripped on a Springfield sidewalk and broken his leg. (Lincoln took Browning’s case all the way to the Illinois Supreme Court, which ruled for Browning because the city had a duty to keep its streets safe and well maintained.)
Almost 10 percent of Lincoln’s cases were in the federal courts, including the one Supreme Court case Lincoln argued, which he lost. Lincoln’s practice also included murder trials. In one, he sharply questioned a witness’s certainty in identifying the defendant on the night of the murder, successfully casting doubt by presenting an almanac that showed that there was very little moonlight on the evening in question. He won another murder trial, shortly before he secured his presidential nomination, by convincing a jury that his client had killed another man in self-defense.
Lincoln’s practice with Herndon also included advising clients on all sorts of matters not involving litigation, including writing deeds, registering land, paying taxes, and drafting contracts and wills. In all, over the course of a legal career extending from 1837 until shortly before he left for his inauguration in 1861, Lincoln handled more than five thousand cases. Despite their many hours together, Lincoln’s preoccupations about politics, law, and literature confounded Herndon. Herndon was an inveterate optimist, who believed “in the universal progress of all things, especially of man’s up going.”40 Lincoln agreed, but he was far more contemplative. Though he often broke his silence with stories and laughter, these were not enough to put Herndon at ease. He found Lincoln “incommunicative—silent, reticent, secretive—having profound policies—and well laid—deeply studied plans.”41
Everyone, including Lincoln, agreed that he did his best work with juries. Otherwise, the lawyers who practiced with Lincoln regarded him as a good lawyer but not a great one. For example, his friend Henry Clay Whitney, who rode the circuit with him, said that Lincoln “was not more than ordinarily successful for a first-class lawyer.”42 One court observer compared Lincoln to Norman Purple, who served on the Illinois Supreme Court from 1845 to 18
48, by saying that Purple,
in intricate questions, is too much for [Lincoln]. But when Purple makes a point, which cannot be logically overturned, Lincoln avoids it by a good-natured turn, though outside the issue. Lincoln’s chief characteristics are candor, good nature, and shrewdness. He possesses a noble heart, an elevated mind, and the true elements of politeness.43
Another friend said that Lincoln “did not stand at the head of the bar, except as a jury lawyer.”44 Herndon, too, did not consider Lincoln to be a first-rate lawyer, believing he was “very deficient” in some ways because he “never thoroughly read any elementary law book” and “knew nothing of the laws of evidence—of pleading or of practice. [He] was purely and entirely a case lawyer—nothing more.”45
Later, when Lincoln was considering the old Pennsylvania pol Simon Cameron for his Cabinet, he said, “I suppose we could say of General Cameron, without offence, that he is not ‘Democrat enough to hurt him.’ I remember people used to say, without disturbing my self-respect, that I was not lawyer enough to hurt me.”46 Likening himself to swine scavenging for acorns in a forest, Lincoln described himself as “only a mast-fed lawyer.”47 According to one of the residents Lincoln visited when he rode the circuit, Lincoln was “aware of his inferiority as a lawyer” and was always ready to acknowledge it “with a smile or a good-natured remark.”48
Herndon saw weakness in Lincoln’s inability to be more deeply philosophical in his reasoning. In describing how to confound Lincoln, Herndon said, ‘If you wished to be Cut off at the knee, just go at Lincoln with abstractions—glittering generalities—indefiniteness—mistiness of idea or expression.” In response to abstract thinking or arguments, Lincoln would “become vexed and sometimes foolishly so.”49 Yet, Lincoln chided Herndon, “Billy don’t shoot too high—shoot low down, and the common people will understand you.”50 Rather than a defect, crafting his rhetoric to be understood by “the common people”—reminiscent of both Jackson’s oratory, direct and unvarnished, and Clay’s, which employed humorous and enlightening analogies—was one of Lincoln’s defining strengths.
Lincoln’s limitations as a lawyer were, however, dramatically exposed in two of his most important cases. In the first, Todd Heirs v. Wickliffe, Lincoln represented his father-in-law, Robert Todd, in an 1848 lawsuit. Todd claimed that Robert Wickliffe had illegally taken the property of Todd’s cousin, Polly, after she had become Wickliffe’s second wife. Polly’s father had left her his vast estate, and her first husband and her son had died before Polly married Wickliffe. When she died, Todd claimed that he was the rightful heir to her estate under her father’s will, which stipulated that if she had no living heirs, the estate would be split among the descendants of her father’s brothers, which included Todd. The will, however, had disappeared. Lincoln represented the Todds, who maintained that Wickliffe had coerced Polly into marrying him and giving her estate to him in exchange for the right to purchase the release of her family’s two slaves. (As a married woman, she had no right to purchase or sell property herself.) It appeared to be an open secret that one of the two slaves was in fact Polly’s son, who would have been an heir to her estate but for the fact that as an African American slave he was not recognized as a person under Kentucky law, let alone having any of the rights or privileges of a propertied white man, including the right of inheritance. Lincoln tried mightily to prove the existence of the will, but in spite of testimony from John Todd Stuart’s father that he had seen the document, the Kentucky courts, including the Kentucky Supreme Court, ruled in favor of Wickliffe as the heir to Polly’s fortune. Lincoln knew that the case broke Robert Todd’s heart, and did not speak of it for years.
In the other case, Lincoln had the rare opportunity to measure his talents against one of the nation’s most famous and highly respected lawyers, Kenyon College–educated Edwin Stanton of Cincinnati. In 1855, the Great Reaper Trial, as it was known, pitted a nearly penniless inventor from Rockford, Illinois, John Manny, and his partners against the wealthy industrialist Cyrus McCormick, Chicago’s largest employer. Both Manny and McCormick manufactured agricultural reapers, and both held several patents, although the foundational patent on the McCormick reaper had expired, and therefore the original invention had entered the public domain and was free for anyone to use. McCormick sued Manny in federal court in Chicago, seeking to put him and his partners out of business. The Manny team decided it needed a lawyer who knew the local judge and the local law, and they hired Lincoln as their counsel. However, the case was eventually moved for the judge’s convenience to Cincinnati, and Manny’s team, who no longer had as much need for Lincoln’s limited utility, brought in Edwin Stanton, later Buchanan’s attorney general, as their main counsel. No one told Lincoln. Because it was a high-profile dispute and Manny’s team had promised Lincoln one of the largest remunerations he was ever promised as a lawyer, $5,000, he spent considerable time on the matter, and was excited to travel to Cincinnati to make the closing arguments in the case. When Lincoln arrived, Stanton took one look and asked an associate, “Where did that long-armed baboon come from?”51 Lincoln was told his services were no longer needed. He remained to watch Stanton argue the case. So impressed with Stanton’s command of the law and the facts was he that Lincoln told his co-counsel, Ralph Emerson, “I am going home. I am going home to study law.”52 Emerson pleaded, “Mr. Lincoln, you stand at the head of the bar in Illinois now! What are you talking about?”53 Lincoln responded, “I do occupy a good position there, and I think I can get along with the way things are done there now. But these college-trained men, who have devoted their whole lives to study, are coming West, don’t you see? And they study their cases as we never do. They have got as far as Cincinnati now. They will soon be in Illinois.”54 After a pause, he added, “I am as good as any of them, and when they get out to Illinois I will be ready for them.”55
Lincoln’s varied clientele reflected his pragmatism to earn his living however he could. Whereas Stephen Douglas was perfectly aligned with the interests of big business, Lincoln’s practice showed him how the law worked on the ground, its effect on everyday citizens, not just elite businesses. All of this deepened his ability to identify with the common man, because he did legal work for common men nearly every day. It also sensitized him to how status often drove the application of the law, as he saw firsthand that women and slaves were not afforded the Constitution’s promise that all would be treated equally.
Lincoln’s law practice kept him busy—so busy that he claimed he did not have time to travel a hundred miles to attend the funeral of his father, who died on January 17, 1851. Lincoln’s stepbrother had urged him to see Thomas before he died, as well as to come to the funeral, but Lincoln demurred. “Say to him that if we could meet now, it is doubtful whether it would not be more painful than pleasant.” In his life, Lincoln never had a kind or positive word to say about his father and, in the years after his death, spoke of Thomas only in ways that elevated his own image of himself as a “self-made man” and denigrated his father as squandering his own chances to make something of himself.
The skills Lincoln refined as a lawyer were as important for his political career as they were for his legal practice. In 1850, he advised young law students, “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has the superior opportunity of being a good man. There will still be business enough.” He stressed, “Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.”56 In 1842, Lincoln had told the Springfield Washington Temperance Society, “When the conduct of men is designed to be influenced, persuasion, kind, unassuming persuasion, should ev
er be adopted. It is an old and true maxim that a ‘drop of honey catches more flies than a gallon of gall.’ So with men. If you would win a man to your cause, first convince him that you are his sincere friend.”57
Such advice was not as obvious as it might seem. Litigation was almost universally understood as the path for a lawyer to achieve prominence in his community or state, and thus it was quite tempting to treat the other side as the enemy. A focus on mutual accommodation clashed with the combative nature of the court system and couldn’t yield the thrill of winning and crushing your opponent. Lincoln told young law students about the importance of both persuasion and preparation, two skills crucial to success in law and politics. In 1850, he explained, “Extemporaneous speaking should be practiced and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business if he cannot make a speech.”58
One observer said, “He never considered anything he had written to be finished until published, or if a speech, until it was delivered.”59 Lincoln also “habitually studied the opposite side of every disputed question, of every law case, of every political issue, more exhaustively, if possible, than his own side. He said that the result had been, that in all his long practice at the bar he had never once been surprised in court by the strength of his adversary’s case—often finding it much weaker than he had feared.”60
The advice Lincoln gave in 1850 applied to everything he said and did in politics and law, both before and especially later—to be a “peacemaker,” to speak with “a moral tone,” to find “compromise” whenever possible, to listen to what others had to say, to learn from his failures, to study opponents’ arguments for their strengths and weaknesses, to persuade people with “a compliment,” and to make friends of your enemies. This was the creed of Clay.
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