Abraham Lincoln: A Life, Volume 1

by Michael Burlingame

  “No, your Honor,” Lincoln replied. “But I am afraid some of the gentlemen may not know him, which would place me at a disadvantage.”198

  One day opposing counsel used a Latin quotation and asked Lincoln: “That is so, is it not?” Lincoln drolly replied, to the delight of the judge and the consternation of his opponent: “If that’s Latin you had better call another witness.”199

  In court, Lincoln occasionally deflated other lawyers with his remarkable gift for puns and barbed anecdotes. When opposing counsel once claimed that “he could bring a man to prove an alibi,” Lincoln replied: “I have no doubt you can bring a man to prove a lie by.”200 Lincoln once skewered a glib young lawyer who patronized him during a trial. Exasperated, he likened his opponent to “an old mud scow that used to run on the Sangamon river” whose “engine was a rather weak affair and when they blew the whistle the wheels would stop.” To the jurors Lincoln said that his opposite number “was in a somewhat similar condition, that when he was using his tongue so vigorously, his brain failed to work.”201

  More gently Lincoln poked fun at Stephen T. Logan, one of the few men more careless about his attire than Lincoln himself. On the brink of a courtroom defeat to his former partner, Lincoln resorted to ridicule as he addressed the jury: “My learned friend [Logan] has made an able speech to you. He has analyzed the testimony with his accustomed acuteness and skill, and laid down to you the law with his usual ability and confidence. And I am not going to assert, positively, that he is mistaken, either as to the law or the evidence. It would not become me to do so, for he is an older and better lawyer than I am. Nevertheless I may properly make a suggestion to you, gentlemen of the jury. And now I ask you, and each of you, to look, closely and attentively, at my friend, the counsel on the other side, as he sits there before you,—look at him all over, but especially at the upper part of him, and then tell me if it may not be possible that a lawyer who is so unmindful of the proprieties of this place as to come into the presence of his Honor and into your presence, gentlemen of the jury, with his standing collar on wrong-end-to, may not possibly be mistaken in his opinion of the law?” This query elicited uproarious laugher when it was observed that indeed Logan had fastened his collar so that its two points were “sticking out behind, like horns.”202

  Lincoln generally maintained good relationships with colleagues like Logan because he respected their skills and readily acknowledged his own weaknesses. Despite his gentle teasing of Logan, Lincoln had such respect for him that he would direct potential clients his way. In the early 1850s, when an Ohio lawyer asked him to sell some land in Illinois owned by a minor, Lincoln in vain looked through Joseph Story’s Conflict of Laws, acknowledged his ignorance of the relevant statute, and said, “I cannot give you an opinion without further examination; you are in a hurry to return home and I will give you the best advice that I can.” He led his guest to the door and pointed to a nearby building, saying: “That is the office of ex-Judge Logan; go to him; if there is a man in Illinois who can give you an opinion at once, he is the man; I am not.”203 On another occasion he told a potential client to seek out John Todd Stuart, explaining that “he’s a better lawyer than I am.”204 As Joseph Gillespie said of Lincoln’s humility: “It required no effort on his part to admit another man’s superiority.”205

  Judge, Lobbyist

  Though he was intensely ambitious, Lincoln did not aspire to become a judge or a state’s attorney. Occasionally, however, he did serve as a temporary judge on the circuit. In antebellum Illinois, lawyers could substitute for judges who were unavoidably absent. When David Davis needed someone to pinch-hit for him, he usually chose Lincoln, who presided only if lawyers for both sides approved. (They often did so, for the arrangement eliminated delays, to the relief of clients and witnesses.) On the bench Lincoln showed his usual tact. Once when some lawyers used various technicalities in a case where they had little ground to stand on, he patiently allowed them to go on for a full day before finally handing down a decision against them, written so carefully that there could be no appeal. “But how are we to get this up to the Supreme Court?” they asked. “Well, you’ve all been so smart about this case,” Lincoln replied coolly, “that you can find out for yourselves how to carry it up.”206

  As a judge, Lincoln did not play favorites. In April 1858 at Urbana, his friend Henry C. Whitney and other attorneys were trying to postpone action on a creditor’s note. Whitney claimed that he had in a timely fashion submitted a demurrer to the court clerk, who could not find it. Lincoln, after listening to heated arguments about the supposed filing, denied Whitney, saying: “Demurrer overruled if there ever was one,” implying that he did not believe Whitney and thought he was merely trying to delay matters.207

  To a newly-named judge who asked how to conduct himself on the bench, Lincoln replied: “There is no mystery in this matter …; when you have a case between neighbors before you, listen well to all the evidence, stripping yourself of all prejudice, if any you have, and throwing away if you can all technical law knowledge, hear the lawyers make their arguments as patiently as you can, and after the evidence and the lawyers’ arguments are through, then stop one moment and ask yourself: What is justice in this case? and let that sense of justice be your decision. Law is nothing else but the best reason of wise men applied for ages to the transactions and business of mankind.”208 This approach to the law also characterized his approach to governing, as he repeatedly showed during his presidency.

  Lincoln was ideally situated to be a lobbyist, for he lived in Springfield, had served four terms in the legislature, and had a large circle of politically well-connected friends. There is some evidence that he engaged in lobbying. In 1853, he received $25 from the commissioners of the Illinois and Michigan Canal for opposing legislation compensating a mill owner for alleged damage done to his business by the canal. That same year he told John A. Rockwell that he had managed to get his coal mining charter passed by the senate but failed to do so in the House for want of time. He would, if desired, try to get it passed at the next session. The following year he lobbied against the Atlantic and Mississippi Railroad, which had long been trying to win legislative approval to construct a line with a terminus at what became known as East St. Louis. Lincoln may have been acting at the behest of the Illinois Central, which did not welcome competition.

  Reputation

  Not everyone entertained a high opinion of Lincoln’s legal ability. Some, like Dr. Allen B. Clough, thought him a lightweight jokester. Clough observed him before the court in Champaign County and said in 1860: “I have seen and heard ‘Old Abe’ at the legal bar, (and other kinds) in this county during every term of the Circuit Court since the Spring of /57, and I never saw him do a good thing yet in his profession, and I have seen him whipped several times by young lawyers of no pretensions.… He has great clownish wit, ready for a joke on any occasion[, a] good memory, therefore he readily copies from others,—has a large base of brain but small perceptive faculties.”209 Others simply belittled him. William Herndon’s brother Elliott, an attorney in Springfield and a fervent Democrat, thought Lincoln “had no mind [not] possessed by the most ordinary of [men].… I never [knew him to] thoroughly understand any [thing in law].”210 Another Democratic attorney in Springfield, George Edmonds, who became the first territorial judge of Utah, singled out “lack of application” as Lincoln’s greatest fault as a lawyer. He “was a lazy man” who “absolutely refused to put more than the minimum of time on any case that he might be interested in. He used to come into the state library at Springfield, and we would see him try to study the cases and make notes of precedents, and so on but he couldn’t keep at it long at one time. He would slam down the books and come over to tell us funny stories.” But, Edmonds admitted, that did not “mean that he slighted his work. He didn’t need to study so much as the rest of us, because he could grasp the essentials of the argument in an instant. Things that other lawyers could not see through without great difficulty were p
erfectly clear to him at once. Still, he was not a great lawyer.”211

  Even his friends acknowledged that Lincoln was “not what might be called an industrious lawyer.”212 The admiring Gibson W. Harris reported that “as a formal student Lincoln struck me as actually lazy.” Days of slack business found him with feet on a table reading Burns or Byron, not law. After an hour or so, he would “stretch himself at full length on the office lounge, his feet projecting over the end of it, hands under his head and eyes closed, and in this attitude would digest the mental food he had just taken.”213 Herndon similarly recalled that “Lincoln never read much law—and never did I see him read a law book through and no one else ever did.” When he arrived at the office around 9 A.M., Herndon said, “the very first thing he did was to pick up some newspaper, if I had not hidden them, and read them aloud, much to my discomfort: he would spread himself out on the sofa—one leg on a chair—another on the table or stove.” Now and then Lincoln “would read something in the papers and that would suggest to him an idea and he would say—[‘]that puts me in mind of a story that I heard down in Egypt in Ills;[’] and then he would tell the story and that story would suggest another and so on. Nothing was done that morning. Declarations—pleas—briefs & demurrers were flung to the winds.”214 (Lincoln also wrote aloud, as it were. “I write by ear,” he told Gibson W. Harris. “When I have got my thoughts on paper, I read it aloud, and if it sounds all right I just let it pass.”)215

  Occasionally, lack of application caught up with Lincoln. Defending his father-in-law, Robert Todd, in a debt matter, he called a witness whose testimony badly hurt Todd’s case. If Lincoln had properly prepared the witness, or had not called him at all, Todd might not have lost. Three years later, in the case of Rogers vs. Dickey, Lincoln fumbled a case before the supreme court because he did not include in his original pleading important cases that he later cited in his request for reconsideration. He could have prevailed if he had earlier called attention to the precedents included in the appeal.

  Unlike other lawyers, Lincoln kept no commonplace book of reported court decisions and did not read supreme court decisions. Instead, when seeking authorities and precedents, he relied heavily on digests and treatises that summarized cases.

  Lincoln could “go off ‘half-cocked’ ” at times. In 1856, while he and Whitney were trying an important land case in Champaign County, Whitney worried that they would lose because Henry Dickerson was to testify against their client. Lincoln said: “we’ll beat that easy enough for Henry Dickerson has served a term in the Penitentiary.” Whitney was amazed, for Dickerson was a highly respected citizen who had never seen the inside of a jail.216 Whitney also recalled with astonishment that Lincoln did not realize that a suit on a foreign judgment could not be defended as if it were a suit brought in Illinois. Lincoln blundered, too, while arguing a case before the state supreme court. He read from a reported case that contained passages supporting his case. But inadvertently he read too far and provided the court with a good precedent against his client. Hesitating, he remarked half-humorously, “There! there! may it please the Court; I reckon I’ve scratched up a snake.”217

  “I have seen him lose cases of the plainest justice, which the most inexperienced member of the bar would have gained without effort,” reported Herndon, who concluded that his partner, for all his skills before a jury, “was a 2d rate lawyer. A great lawyer is one who is the master of the whole law—and who is ever ready to attend in a masterly way all cases that come before him right or wrong—good or bad—ready or not ready, except ever ready through his legal love and his own sagacity.” Rhetorically, he exclaimed, “What—make a great lawyer of a man who never read law much!” David Davis stated that Lincoln “could hardly be called very learned” and that “he read law books but little, except when the cause in hand made it necessary.”218

  In the January 1860 term of the Illinois Supreme Court, the firm of Lincoln and Herndon suffered an embarrassing series of reverses, losing nine of ten cases, largely because of incompetence. Since Lincoln was preoccupied with his Cooper Institute speech and other matters related to the impending presidential campaign, it is likely that he had little to do with these cases.

  More than once Lincoln had occasion to apologize for running a sloppy office and for negligence in details. In his notoriously untidy office, papers were easily mislaid. Atop a package of letters, newspapers, pamphlets, and other miscellaneous documents, he affixed a label stating, “When you can’t find it any where else look into this.”219 In 1850, he confessed to a client: “I am ashamed of not sooner answering your letter, herewith returned; and, my only appologies are, first, that I have been very busy in the U.S. court; and second, that when I received the letter I put it in my old hat, and buying a new one the next day, the old one was set aside, and so, the letter lost sight of for a time.”220 Four years later he sent a similar apology to Milton K. Alexander: “It pains me to have to say that I forgot to attend to your business when I was in Clinton, at Court in May last. Your best way would be to address me a letter at Clinton, about the time I go there to court in the fall (Oct. 16th. I think) and then it will be fresh, & I will not forget or neglect it.”221

  Examples of negligence appear sporadically throughout Lincoln’s career. In 1846, for example, he filed an affidavit concerning the case of Chancey vs. Jackson in which he said that he received a letter from R. J. Hamilton asking him to attend to that case; that he “considered himself engaged to do so, and in good faith intended to do the same; that having considerable other, and earlier business in said court, he lost sight of the case; and the judgment therein, as it seems, was reversed for want of a joinder in error.” Lincoln added that he “had no actual knowledge of a rule being taken in the case for joinder in error, or of the reversal for want of joinder, until this morning.” He “believes that appellee, through said Hamilton, relied for attention to the case, exclusively on the affiant, and therefore had no other attorney nor attendants.”222 That same year the New York attorney William M. Evarts asked Cyrus Edwards “to see Lincoln and ask him why he does not remit the $125.00 he collected as dividend on stock of the Alton Fire Insurance Co. for my client.… I know he has collected it but I cannot find out from him why he does not remit it.”223 In 1838, Lincoln apologized to Levi Davis, saying that the firm of Lincoln and Stuart “received yours of the 2nd. inst. by due course of mail, and have only to offer in excuse for not answering it sooner, that we have been in a great state of confusion here ever since the receipt of your letter.… We beg your pardon for our neglect in this business.” Then he added lamely, “if it had been important to you or your client we would have done better.”224

  But in general, Lincoln was conscientious. Preparing for trial, he anticipated what opposing counsel might do. He told a friend that “he 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.”225

  It is difficult to describe Lincoln’s stature as a lawyer with any precision. We cannot, for example, compare the number of cases won and lost because of incomplete statistics. Even where such numbers can be generated, as in Lincoln’s appearances before the Illinois Supreme Court, the won–lost yardstick is misleading, for it fails to account for the degree of difficulty involved in each case. Some apparent losses may have been victories in substance. If, for example, Lincoln’s client were sued for $1,000 and the jury found for the plaintiff but awarded damages of only $1, the defendant, though technically a loser, would probably have been more than satisfied with his attorney.

  The true test of Lincoln’s ability would be to assess cases on their merits, judging how well he did compared to what most lawyers would have done. Such judgments are necessarily subjective and hard to make in hindsight.
Even with the abundant documentary evidence that has been unearthed concerning Lincoln’s career at the bar, the challenge is still formidable. Those documents, though numerous, shed little light on the substance of his arguments before juries.

  Lawrence Weldon thought that Lincoln “could not perhaps be called a great lawyer, measured by the extent of his acquirement of legal knowledge. He was not an encyclopedia of cases, but … in the clear perception of legal principles, with natural capacity to apply them, he had very great ability.”226 A juror in an 1859 case argued by Lincoln said that he “is not a great lawyer but a good one.” His opposing counsel, Norman Purple, “in intricate questions, is too much for him. 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 is a gentleman throughout. I wish I could add—the scholar. He possesses a noble heart, an elevated mind, and the true elements of politeness.”227

  Henry C. Whitney said of Lincoln’s record on the circuit that he “was not more than ordinarily successful for a first-class lawyer.”228 He “did not stand at the head of the bar, except as a jury lawyer,” another contemporary observer and admirer of Lincoln acknowledged. “Before the Court he was inferior, both in argument and influence, … to such men as Judge [Joel] Manning, Judge Purple, and Mr. [Elihu N.] Powell.”229 He certainly did not belong to the tribe of legal giants like Reverdy Johnson, Daniel Webster, David Dudley Field, and other attorneys celebrated for their profound learning and ability to affect history in actions before the U.S. Supreme Court. (Lincoln did present one case, a highly technical one, before that tribunal.) Informants for the nation’s leading credit-rating agency described him in 1856 as “a G[oo]d man & to be relied on,” and two years later as “prompt efficient and skillful.”230 In sum, Lincoln was a highly capable but not outstanding lawyer.