Lincoln's Greatest Case: The River, the Bridge, and the Making of America

by Brian McGinty

  When the survey reports were all turned in, they did not show a clear preference for any of the four routes, but Davis still believed that the southern line would eventually be adopted. He was, of course, an ardent southerner, and a champion of slavery. He knew that if slavery in the United States was to expand, it would have to do so toward the west and the south, and a railroad across the land acquired in the Mexican War would bring new settlers to a hot and sultry land where agriculture could thrive, as it had in the Old South.53 As slaveholders moved into this land, they would organize territories and then states that would help the existing slaveholding states resist northern cries that no more slave states should be admitted to the Union.

  In 1853, in order to make sure there would be a good railroad route through the Southwest, the pro-southern President Franklin Pierce sent James Gadsden of South Carolina to Mexico City to purchase additional land from President Antonio López de Santa Anna. Santa Anna was at first reluctant to part with more of his national territory—Mexico had already lost two-fifths of its land to the United States—but the promise of a cash payment if he did and the threat of another war if he didn’t persuaded him to reconsider. Signed in late 1853 and ratified in June of 1854, the new treaty between the two countries called for the payment of $10 million to Mexico and the transfer to the United States of additional land in the Mesilla Valley and south of the Gila River.54 Encompassing close to thirty thousand square miles of land, the so-called Gadsden Purchase was clearly adequate to facilitate the construction of the southern crossing that Davis favored.55

  But there were other men in other parts of the country who had different ideas. Among these were the financiers and engineers who were furiously building railroads across the upper Middle West, traversing Illinois from north to south and east to west, bringing their iron rails, locomotives, and railroad cars from the eastern seaboard up to the edge of the Mississippi River at a point far north of Jefferson Davis’s favored southern crossing. Among these were the builders of the Chicago and Rock Island and the Mississippi and Missouri Railroads. These men not only nurtured dreams of crossing the Mississippi. They also harbored the seeds of a legal and political controversy of monumental proportions. The political controversy would be aired in the legislative halls of the states and the nation, and the legal controversy would be tried before a judge and jury in a Chicago courtroom, where Abraham Lincoln would be called on to participate.

  THREE

  His Peculiar Ambition

  Abraham Lincoln did not become a lawyer until he was twenty-eight years old, but his interest in pursuing a legal career began many years before that.1 In his native Kentucky, his father was troubled by the unsettled condition of the titles to the land he was farming. As Lincoln later recalled, the land laws then were “mysterious relics of feudalism, and titles got into such an almighty mess with these pettifoggin’ encumbrances turnin’ up at every fresh tradin’ with the land, and no one knowin’ how to get rid of ’em.”2 Thomas Lincoln’s trouble with his land titles was one of the reasons he packed his family up when Abraham was seven years old and took them across the Ohio River into Indiana. Lincoln biographer Michael Burlingame has speculated that the senior Lincoln’s troubled land titles may have stimulated his son’s interest in law and surveying, both pursuits he followed in his later life.3

  When he was a teenage boy living on his father’s farm at Little Pigeon Creek in Spencer County, Indiana, Lincoln liked to attend trials held before the local justice of the peace and often walked to neighboring towns to watch the legal proceedings there. He attended one murder trial in the town of Boonville, seat of neighboring Warrick County, in which the defense attorney made a particularly effective closing argument. When, years later, that same attorney visited Lincoln in the White House, Lincoln remembered the closing argument he heard as a boy, saying that if he could have made as good a speech his “soul would have been satisfied.” From that time forward, as one of his Indiana neighbors later said, “he formed a fixed determination to study the law and make that his profession.”4

  When Lincoln began his political career in Illinois in 1832, he issued a public statement in which he described his goals. “Every man is said to have his peculiar ambition,” he wrote. “Whether it be true or not, I can say for one that I have no other so great as that of being truly esteemed of my fellow men, by rendering myself worthy of their esteem.”5 Earning the “esteem” of his fellow men was an admirable ambition for a young man from a poor farming background with only the barest rudiments of a formal education to help him better his condition in life. But how could he achieve it, and what benefit would he derive from it once it was achieved?

  He sought initially to win the “esteem” of his fellow men by running for a seat in the Illinois legislature. Achieving elective office and helping other elected officials make laws for his community and state was certainly one way of earning “esteem,” and if the laws were good and he conducted himself honorably while helping to make them, he could rightfully feel that he was worthy of the “esteem” he earned. Legislative service, however, was not a full-time occupation, or one he could count on to put food on his table. The Illinois legislature met for only a few weeks each year, and during Lincoln’s first term the pay was a modest three dollars for each day of actual attendance, and four dollars for later terms. He had to find an occupation that would enable him to earn a living at the same time that he was pursuing his political career. Musing in later years about his choice of occupation, Lincoln said that he could have become a blacksmith or a lawyer.6 He could also have been a grocer, an assistant postmaster, a surveyor (all occupations he followed for short periods), or a carpenter and farmer like his father (80 percent of the population of Illinois was then engaged in farming).

  Given Lincoln’s interest in politics, however, it is not surprising that he chose to become a lawyer. Men who seek public office often pursue legal careers before they enter the political arena. Most legislators (on the state and federal levels), and most presidents of the United States, have begun their professional careers as lawyers. John Adams and Thomas Jefferson were political adversaries in the formative years of the United States, yet both were lawyers in their early lives, as were James Monroe, John Quincy Adams, Andrew Jackson, Martin Van Buren, John Tyler, James K. Polk, Millard Fillmore, Franklin Pierce, and James Buchanan. Only four of the first fifteen presidents were not lawyers. George Washington and James Madison were planters, while William Henry Harrison and Zachary Taylor were professional military officers. (Although Madison was one of the most brilliant legal minds of his time, he never actually became a lawyer).7 Andrew Jackson was a military hero, but he was a lawyer by profession and even served for a time as a judge. And the great political leaders of Abraham Lincoln’s early life—Daniel Webster, John C. Calhoun, and Henry Clay—were all lawyers. By choosing a legal career, Lincoln was following in well-marked footsteps. He could combine politics and law—or law and politics—and with these two occupations pursue his goal of winning the “esteem” of his fellow men.

  Lincoln did not become a lawyer until after he first ran for public office, but it is not hard to explain why he reversed this usual order. He was virtually penniless when he first came to Illinois, ill clothed, poorly educated, and unsophisticated. But he was a likable young man with an engaging personality, a natural, spontaneous sense of humor, and a gift for public speaking. When he evidenced an interest in running for the Illinois legislature, he found good support among his neighbors and friends in New Salem, the Sangamon County village in which he had made his home. Though his first campaign for the legislature, in 1832, was unsuccessful, his second, in 1834, resulted in his election. But becoming a lawyer requires a long period of purposeful study. Lincoln pursued that study—although it was interrupted from time to time by the necessity of taking jobs that would give him the wherewithal to continue his study—so he did not finally become a practicing lawyer until March 1837.8

  After he became president,
Lincoln told a deputy attorney general in Washington that he was “a mast-fed lawyer.”9 It was a backwoodsy way of saying that he was self-educated (“mast” is the accumulation of acorns and other nuts that pigs live on when they roam the forests). Lincoln’s “mast,” however, consisted of law books that he was able to borrow from neighbors and friends. He read Blackstone’s Commentaries on the Laws of England (the bible of American legal studies in that time) and Chitty’s Pleadings, an essential guide to legal procedure. It is probable that he also read Story’s Equity Jurisprudence and Kent’s Commentaries on American Law, treatises that, with Blackstone and Chitty, were considered indispensable guides to American law.10 He often walked from New Salem into nearby Springfield to borrow books from John Todd Stuart, a prominent Springfield lawyer he met while serving in the Black Hawk War.11 He held the books in front of him as he returned home, reading them as he went, and when he got there he continued to read them, often in the shade of a white oak tree.12 His neighbors thought it odd to see a young man with practically no formal education spending so much time with books. When a neighbor who had employed him to work as a surveyor saw the young man sitting barefoot on top of a woodpile with his head in a book, he asked, “Abe, what are you studying?” “Law,” Abe replied. “Great God Almighty,” the man said as he walked away.13

  In Illinois in the 1830s, choosing a career in the law was an honorable goal, and not one that many young men would scoff at. Much of the work of lawyers was performed in courthouses, and even in country villages courthouses were important places. They were the headquarters of local government, forums in which the public’s official business was administered in view of all who cared to see. If men and women wanted to know how the law affected their own lives, they could make their way to the courthouse in the center of the nearest town and find a seat on one of the benches provided for spectators. They could watch the lawyers assemble inside the rail (or bar) that separated them and the audience, listen to the judge rap his gavel for order, and watch the drama of real life unfold before them. There were crimes to be tried, and criminals to be punished. There were neighbors’ quarrels to be aired, and property disputes to be settled; debts to be proved and collected; slanderous attacks on honor and reputation to be avenged (or assuaged); domestic squabbles to be aired. It was not surprising that courts attracted so much interest in Lincoln’s time, or that a man like Lincoln, who enjoyed the attention that was focused on him when he spoke in public, should seek a place in them. The courts were theaters of a sort; the judge and the lawyers and the witnesses were the actors onstage, the spectators the audience.

  Lincoln knew, of course, that many people had a low opinion of lawyers—or at least professed to have a low opinion of them. Lawyers had always been ridiculed for their real (or supposed) deviousness and their underhanded dealings with clients and the general public. In notes for a lecture he prepared later in his life, Lincoln observed that there was “a vague popular belief that lawyers are necessarily dishonest.” But he thought the impression was “vague, because when we consider to what extent confidence, and honors are reposed in, and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty, is very distinct and vivid.”14 Lincoln was an honest man—honest to his core—and he had no intention of changing his ways after he became a lawyer.

  Shortly after he was admitted to the bar, Lincoln joined a partnership in Springfield with John Todd Stuart, who had lent him books when he was studying law. Stuart was less than two years older than Lincoln, but he was already a veteran lawyer and an experienced politician. He spent much of 1838 campaigning against Stephen A. Douglas for a seat in Congress (Stuart won by a narrow margin) while Lincoln tended to the firm’s legal business in Springfield.15 In 1841, Stuart and Lincoln ended their partnership on amicable terms and Lincoln became the junior partner to Stephen T. Logan, a former judge who was nine years his senior and widely considered the best all-round lawyer in Sangamon County, if not in the state.16 This partnership continued until 1844, when Logan decided to bring his son into his office in place of Lincoln and Lincoln formed his third and final partnership with William H. (Billy) Herndon, a young man who had read law with Lincoln and Logan and just been admitted to the bar. The partnership of Lincoln and Herndon continued until Lincoln went to Washington as president in 1861. In that time, Herndon and Lincoln handled more than 3,200 cases.17 In the total of nearly twenty-five years that Lincoln practiced law, he took part in more than 5,200 cases and participated in nearly 500 nonlitigation activities.18

  Yet even with such a busy schedule, Lincoln still found the time and energy to explore other fields. From his boyhood days, he read the Bible avidly, spent long hours devouring biographies of famous men, and savored poetry.19 His oldest son, Robert Todd Lincoln, later remembered that he hardly ever saw his father “without a book in his hand.”20 In addition to his reading, Lincoln exercised his mind by studying Euclidian geometry. When he was traveling, he carried a book of Euclid with him so he could spend idle moments studying the exercises until, as Billy Herndon later remembered, “he could with ease demonstrate all the propositions in the six books.”21 Logic was always one of his strong suits, both in his legal practice and in politics, and he was determined to maintain, even strengthen it.

  And he avidly studied the law applicable to his cases. Hiram Beckwith, a lawyer who often saw Lincoln, thought that “few, if any, practitioners were better, if as well, grounded in the elementary principles of the law. His knowledge of these, as well as the very reason for them, was so well mastered that he seemed to apply them to individual ‘cases’ as if by intuition.” Beckwith believed that a mere “case lawyer” would have had “little chance” with Lincoln.22

  Lincoln’s ability to master difficult legal principles was often demonstrated in the Illinois Supreme Court, where in the course of his career he and his partners handled more than four hundred cases.23 Because effective appeals require careful research in legal precedents and strong, logical arguments, attorneys throughout the state sought Lincoln’s services when they had cases they wanted to appeal to the Illinois Supreme Court. Lincoln handled the appeals of more than two hundred cases that had been conducted by other lawyers at the trial court level, a fact that, in legal historian Mark Steiner’s estimation, showed that he was a “lawyer’s lawyer.”24 When Lincoln was preparing a case for argument in the supreme court, he often absented himself from other work for as long as a week or two. During that time, he would typically be found in his office or in the library of the supreme court hard at work.25

  Lincoln was also attorney of record in several cases that were appealed to the United States Supreme Court. In four cases he did not present the oral arguments, but in one he personally argued the case before Chief Justice Roger Taney and the associate justices.26 This was in March 1849, when Lincoln was serving his first and only term as a member of the U.S. House of Representatives. Herndon once heard Lincoln argue a particular case in the Illinois Supreme Court. It was, he says, “argued extremely well—it was logical—eloquent. In making his argument he referred to the history of the law, a useless part as I then thought, but know better now. After the speech was through and Lincoln had come into the law library room where the lawyers tell stories and prepare their cases I said, ‘Lincoln, why did you go so far back in the history of the law as applicable to this case’ & to which he instantly replied, ‘I dare not trust this case on presumptions that this court knows all things. I argued the case on the presumption that the court did not know anything,’ and in this he was right for our supreme court at that time did not know everything. Lincoln gained this very case by that very history he was so careful to state fully.”27

  Lincoln’s work as a nisi prius (trial) lawyer gave him a reputation among the common people of Illinois. He was effective in the trial courtroom, where he could engage in legal arguments with opposing counsel, examine friendly witnesses, cross-examine unfriendly witnesses, and, at the end of a trial, add
ress the jury. Leonard Swett, an attorney who appeared in many trials both with and against Lincoln, had abundant opportunity to watch him in action. “As he entered the Trial,” Swett said, “where most lawyers object, he would say he ‘reckoned’ it would be fair to let this in or that and sometimes, where his adversary could not quite prove what Lincoln Knew to be the truth he would say he ‘reckoned’ it would be fair to admit the truth to be so & so[.] [W]hen he did object to the Court after he heard his objection answered he would [then] say ‘Well I reckon I must be wrong.[’] Now about the time he had practiced this through the case if his adversary didn[’]t understand him he would wake up in a few minutes finding that he had [secured] the Greeks too late and woke up to find himself beat. . . . Any man who took Lincoln for a simple minded man would very soon wake [up] with his back in a ditch.”28

  In the trial courtroom, Lincoln was, as Henry Clay Whitney, a lawyer who often tried cases with him, later remembered, “entirely calm, unexcited, imperturbable; you could not discern by his manner that he had the slightest tinge either of trepidation or enthusiasm, but he remained inflexible and stoical to the last.”29 Whitney once tried an important railroad case with Lincoln. While listening to the arguments of the opposing lawyer, Whitney began to get alarmed and spoke to Lincoln. Lincoln remained “inflexibly calm and serene, and merely remarked: ‘All that is very easily answered,’ and when his time came, he blew away what seemed to me as almost an unanswerable argument as easily as a beer-drinker blows off the froth from his foaming tankard.”30