Abraham Lincoln: A Life, Volume 1

by Michael Burlingame

  Throughout the winter of 1856–1857, Lincoln continued to help strengthen the Republican Party in Illinois, often attending caucuses of legislators. When in doubt about how to deal with the Democrats, Norman B. Judd would say, “I will go round and bring in Old Abe tomorrow night.” Lincoln regularly obliged, amazing the lawmakers with his shrewd analysis of their opponents’ thinking and offering much-appreciated advice about legislative strategy, particularly in combating a reapportionment law that would have ruined the Republicans’ electoral prospects.118

  Collecting a $5,000 Fee

  Much as he wanted to help the Republican cause, in 1857 Lincoln was forced by economic necessity to devote most of his energy to practicing law. “I lost nearly all the working part of last year, giving my time to the canvass,” he wrote in August, “and I am altogether too poor to lose two years together.”119 To replenish his coffers, he sued the Illinois Central Railroad for $5,000 as a fee for services in the case of Illinois Central Railroad vs. McLean County, Illinois and Parke. Accounts of Lincoln’s efforts to collect his fee, the largest of his career, differ. According to Herndon, when Lincoln submitted a bill for $2,000, a company official expostulated: “Why, sir, Daniel Webster would not have charged that much.”120 (Mason Brayman, who hired Lincoln to argue the case, testified that he offered a fee of $1,250, and when Lincoln presented his bill, he was told: “Why that is as much as a first-class city lawyer would charge.”)121 Smarting from this rebuff, Lincoln returned to Springfield, en route stopping in Bloomington, where he consulted prominent attorneys. They told him that he should have asked for $5,000 and urged him to sue for that amount. Lincoln did so and won.

  Sources connected with the Illinois Central present a different account: they maintain that the suit was a mere formality and that the company had all along intended to pay Lincoln his fee. Documents in the company files indicate that Lincoln submitted his bill to John M. Douglas, an acquaintance of his who served as solicitor for the company. Douglas referred the matter to the head of the company’s law department, Ebenezer Lane, who in turn passed it along to the president, William H. Osborn. In the summer of 1856, Osborn asked James F. Joy his opinion of Lincoln’s bill. Joy’s reply is not extant, but he later recalled telling Lincoln that his fee was excessive. The egotistical Joy held Lincoln in contempt, regarding him as a run-of-the-mill provincial attorney. (For his role in the case, Joy had received only $1,200 above and beyond his regular salary. “I think there would have been no difficulty with Mr. Lincoln’s bill if I had charged as, perhaps, I ought to have done, five thousand dollars,” Joy later mused.)122 In response, Lincoln “said that he had done good work; that the amount in litigation far exceeded the fee many thousand times over, and that he thought he ought to get a good fee.”123 Joy recollected that the Illinois Central leaders said to Lincoln (in effect): “Bring suit against the company for the amount demanded and no attempt will be made to defend against it. If by the testimony of other lawyers it shall appear to be a fair charge and there shall be a judgment for the amount, then we shall be justified in paying it.”124

  This reminiscence may be inaccurate, for less than a month after filing suit for his fee, Lincoln told some potential clients: “I have been in the regular retainer of the [Illinois Central] Co[mpany] for two or three years; but I expect they do not wish to retain me any longer.… I am going to Chicago … on the 21st inst. and I will then ascertain whether they discharge me; & if they do, as I expect, I will attend to your business.”125 There may have been some bad blood between Lincoln and Joy; Charles L. Capen, an eminent attorney who investigated the handling of the fee, reported that “the whole trouble was with Mr. James F. Joy … whom Mr. Lincoln afterward despised.”126 In 1855, Joy had rudely questioned a modest bill Lincoln submitted for services to the company. (Seven years later, John M. Douglas, a friend of Judge Thomas Drummond, who aspired to a seat on the U.S. Supreme Court, thought it best not to have Joy lobby President Lincoln on the judge’s behalf. Douglas said “it would do no good for Joy to see Lincoln but possibly [do] harm growing out of past relations.”)127

  The case was slated for trial at Bloomington on June 18, 1857; Lincoln was prepared to fight hard for his fee, suggesting that the suit was not a friendly one. In notes for his plea, he alleged that he, not Joy, had “made the point & argument on which the case turned,” and asked: “Are or [are] not the amount of labor, the doubtfulness and difficulty of the question, the degree of success in the result; and the amount of pecuniary interest involved, not merely in the particular case, but covered by the principle decided, and thereby secured to the client, all proper elements, by the custom of the profession to consider in determining what is a reasonable fee in a given case[?]” He concluded that “$5000 is not an unreasonable fee in this case.”128 To buttress his argument, he supplied a deposition signed by attorneys Norman B. Judd, Grant Goodrich, Orville H. Browning, Archibald Williams, Norman H. Purple, and Stephen T. Logan, all of whom agreed that the amount asked was reasonable. Gustave Koerner told him that he would have been justified in asking twice as much. On the day of the trial, John M. Douglas, the company attorney, did not appear, leading the judge to award Lincoln his fee by default. Mortified by his failure to be in court when the case was tried, Douglas asked that it be retried, evidently so that he could save face; he did not want his superiors to see that the company had lost by default. Lincoln, gracious beyond what could reasonably have been expected, decided to forego his victory, agreeing with opposing counsel to have a perfunctory second trial with a predetermined outcome. On June 25, the court, after a very brief trial, again awarded Lincoln his requested fee. The railroad could have appealed but instead consented to give Lincoln his $5,000. (Douglas did not admire Lincoln. In 1860 he told George B. McClellan that Lincoln “is not a bold man. He has not nerve to differ with his party and its leaders.”)129

  Why Illinois Central executives required Lincoln to sue them is unclear. Joy’s explanation that it was “a friendly suit” is contradicted by Lincoln’s notes for a brief and by his fear of losing his retainer with the company. Perhaps officials of the Illinois Central, which was in desperate financial straits, suspected that the corporate directors in New York would object to such a large sum. At that time, shareholders in Great Britain were sending agents to inspect the company’s books, and they may have balked at a $5,000 fee. In any event, their behavior did little credit to the company’s managers.

  Though it may not be obvious why the Illinois Central wanted Lincoln to sue for his fee, the company’s motive for settling is: its executives wished Lincoln to represent them in another tax suit that the state of Illinois threatened to file. To prosecute the case, Lincoln’s friend, State Auditor Jesse K. Dubois, sought to hire Lincoln, who would probably have accepted if he had not been on retainer to the Illinois Central. He declined, however, and in December 1857 urged Dubois to abandon his plan. Henry C. Whitney, who represented the Illinois Central in Champaign County, told officials of the company that “we could not afford to have Lincoln as our enemy, instead of an ally.”130 The Illinois Central’s chief attorney explained to its president: “We can now look back & in some degree estimate the narrow escape we have made.” Having Lincoln as opposing counsel would have been a serious setback, the attorney explained, because he knew all about “the obscurity of those sections of our charter, relating to taxation, which, unexplained by the History of the Charter,” would harm the railroad’s position. In addition, Lincoln was “not only the most prominent [member] of his political party, but the acknowledged special adviser of the Bissel[l] Administration.”131

  A year later, Stephen A. Douglas, referring to the $5,000 fee, accused Lincoln of “taking the side of the company against the people.”132 Lincoln replied that because the McLean County tax case “was worth half a million dollars” to the Illinois Central, he thought a fee of $5,000 reasonable, while the company “wanted to pay me about $500.” That, Lincoln said, constituted “the whole truth about the fee; and wha
t tendency it has to prove that I received any of the people’s money, or that I am on very cozy terms with the Railroad Company, I do not comprehend.”133 (It has been suggested that Lincoln’s fee in this case enabled him to run against Douglas for the senate in 1858, but that contention does not withstand scrutiny. He split the money evenly with Herndon and then lent his share to Norman B. Judd, who did not repay it until 1865.)

  The charge that Lincoln was a railroad lawyer siding with corporations against the people is misguided. Although he did represent the Illinois Central and other railroads successfully on many occasions, he often brought suit against them. Like most other lawyers of his time and place, he was prepared to represent virtually any client against any foe. The major exception was the Illinois Central, whose retainer prevented him from suing it on behalf of others. He worked steadily for that company from 1852 to 1860, handling forty-seven documented cases, but those cases constituted a tiny percentage of his business. (It is impossible to determine with precision what portion of Lincoln’s income derived from various clients.) Aside from the large fee he wrested from it in the McLean County tax case, he received modest sums; his annual retainer was $250, and his fee for trying most cases was $10.

  Whatever he did receive from the Illinois Central he was grateful to get. He told Herndon: “Billy, it seems to me that it will be bad taste on your part to keep on saying the severe things I have heard from you about railroads and other corporations. The truth is, instead of criticizing them, you and I ought to thank God for letting this one fall into our hands.” Henry C. Whitney, also hired by the Illinois Central, told an interviewer: “I had authority to employ additional counsel whenever I chose to do so, and in Judge Davis’s circuit I frequently applied to Lincoln when I needed aid. I never found him unwilling to appear in behalf of a great ‘soulless corporation.’ ”134 According to Whitney, Lincoln said during the trial of a case in which he represented the railroad corporation: “Counsel avers that his client has a soul. This is possible, of course; but from the way he has testified under oath in this case, to gain, or hope to gain, a few paltry dollars he would sell; nay, has already sold, his little soul very low. But our client is but a conventional name for thousands of widows and orphans whose husbands’ and parents’ hard earnings are represented by this defendant, and who possess souls which they would not swear away as the plaintiff has done for ten million times as much as is at stake here.”135

  In July 1857, Lincoln and his family traveled to New York, evidently to collect the $5000 fee awarded to him. (Company officials refused to pay, so Lincoln on August 1 had the sheriff of McLean County issue an execution on the corporation, which only then agreed to comply with the court order.) He later recalled that he spent his time in New York “visiting with his wife the various ‘lions’ of the city.”136 Mary Lincoln reported to her half-sister Emilie in September: “This summer has strangely & rapidly passed away—some portion of it, was spent most pleasantly in travelling east, we visited Niagara, Canada, New York & other points of interest.” She added that “when I saw the large steamers at the New York landing, ready for their European voyage, I felt in my heart, inclined to sigh, that poverty was my portion, how I long to go to Europe. I often laugh & tell Mr. L- that I am determined my next Husband shall be rich.”137

  This trip to Niagara was the family’s second; the first had occurred nine years earlier, when Lincoln returned home from his Massachusetts campaign swing. The majesty of the falls inspired him to meditate on “the indefinite past.” He marveled that when “Columbus first sought this continent—when Christ suffered on the cross—when Moses led Israel through the Red-Sea—nay, even, when Adam first came from the hand of his Maker—then as now, Niagara was roaring here.” Mastodons and mammoths, “now so long dead, that fragments of their monstrous bones, alone testify, that they ever lived, have gazed on Niagara. In that long—long time, never still for a single moment. Never dried, never froze, never slept, never rested.”138

  Attacking the Dred Scott Decision

  As 1857 dawned, the tide of political unrest seemed to be ebbing. On New Year’s day, the Illinois State Journal announced that the mood “throughout our Republic is buoyant and encouraging. The prospect before the nation is well calculated at once to induce gratitude to Divine Providence.”139 Most importantly, the violence in Kansas had finally been quelled, thereby cooling off both Southern disunionism and Northern antislavery zeal. Then the U.S. Supreme Court abruptly shattered the calm.

  On March 6, 1857, that tribunal handed down its decision in the case of Dred Scott vs. Sandford, ruling that Congress could not prohibit slavery from entering the western territories and that blacks, both slave and free, were not American citizens. The Chicago Tribune spoke for millions when it called the majority opinion of Chief Justice Roger B. Taney and six colleagues “[s]udden, unexpected and shocking to the sensibilities and aspirations of lovers of freedom and humanity,” reversing “the current of progressive ideas and christian humanity,” and bidding fair to reintroduce “the iniquitous despotism and legalized inhumanity of barbarian ages.”140

  In June at Springfield, Lincoln denounced the court in one of his most eloquent speeches, prompted by Stephan A. Douglas’s address there two weeks earlier. The Little Giant had declared that the “history of the times clearly shows that our fathers did not regard the African race as any kin to them, and determined so to lay the foundations of society and government that they should never be of kin to their posterity. (Immense applause.)” But, Douglas added, “when you confer upon the African race the privileges of citizenship, and put them on an equality with white men at the polls, in the jury box, on the bench, in the executive chair, and in the councils of the nation, upon what principle will you deny their equality at the festive board and in the domestic circle?” He also denounced Republican criticism of the Dred Scott decision, declaring that anyone who “resists the final decision of the highest judicial tribunal aims a deadly blow to our whole republican system of government” and is “an Amalgamationst.”141 (In 1856, Douglas had declared during a senate debate: “We do not believe in the equality of the negro, socially or politically, with the white man. Our people are a white people; our State is a white State; and we mean to preserve the race pure, without any mixture with the negro.”)142

  In reply, Lincoln stated that the Republicans “offer no resistance” to the Dred Scott decision, for the court might change its mind. (Lincoln had first-hand knowledge of such a reversal, for in the one case that he argued before that august tribunal—Lewis vs. Lewis in 1849—the court overruled a decision it had issued ten years earlier.) He conceded that it would be “revolutionary” not to “acquiesce in it as a precedent,” if—and only if—it “had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with 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 re-affirmed through a course of years.” But because the decision satisfied none of those requirements, it was “not resistance,” “not factious,” “not even disrespectful” to regard it “as not having yet quite established a settled doctrine.”

  Curiously, Lincoln did not make the common Republican argument, raised by dissenting justices in the case, that the decision regarding congressional power to prohibit slavery in the territories was obiter dictum, an incidental observation lacking the force of law.

  Heatedly, Lincoln challenged Taney’s suggestion that the condition of American blacks had improved since the adoption of the Constitution. Pointing out that in 1857 fewer states allowed blacks to vote or masters to manumit their slaves than had done so seventy years earlier, Lincoln eloquently and compassionately described the plight of the black man in America: “All the powers of earth seem rapidly combining against him. Mammon is after him;
ambition follows, and philosophy follows, and the Theology of the day is fast joining the cry. They have him in his prison house; they have searched his person, and left no prying instrument with him. One after another they have closed the heavy iron doors upon him, and now they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places; and they stand musing as to what invention, in all the dominions of mind and matter, can be produced to make the impossibility of his escape more complete than it is. It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government.”

  Lincoln protested vehemently against Douglas’s racial demagoguery. Conceding that there was “a natural disgust in the minds of nearly all white people, to the idea of an indiscriminate amalgamation of the white and black races,” Lincoln scornfully observed that Douglas “evidently is basing his chief hope, upon the chances of being able to appropriate the benefit of this disgust to himself. If he can, by much drumming and repeating, fasten the odium of that idea upon his adversaries, he thinks he can struggle through the storm. He therefore clings to this hope, as a drowning man to the last plank. He makes an occasion for lugging it in from the opposition to the Dred Scott decision. He finds the Republicans insisting that the Declaration of Independence includes ALL men, black as well as white; and forthwith he boldly denies that it includes negroes at all, and proceeds to argue gravely that all who contend it does, do so only because they want to vote, and eat, and sleep, and marry with negroes!” Bosh! said Lincoln. “I protest against that counterfeit logic which concludes that, because I do not want a black woman for a slave I must necessarily want her for a wife. I need not have her for either, I can just leave her alone. In some respects she certainly is not my equal; but in her natural right to eat the bread she earns with her own hands without asking leave of any one else, she is my equal, and the equal of all others.”