Much of Lincoln’s trial work was performed in Illinois’s Eighth Judicial Circuit, a sprawling expanse of prairie that stretched from Sangamon County clear to the Indiana border. Samuel Treat, later a United States district judge, presided over the circuit until 1848; thereafter David Davis of Bloomington (whom Lincoln later appointed to the United States Supreme Court) was the presiding judge. The courts of the Eighth Judicial Circuit, like the other circuit courts of Illinois, were courts of general jurisdiction in both criminal and civil cases.31 In them, most of the important legal disputes in the state were brought to trial and resolved. Whitney left revealing recollections of life on the Eighth Judicial Circuit late in Lincoln’s tenure on it. The county seats were located at “small and primitive villages,” Whitney said, and the business of the court was “meager and uninteresting.” But when the judge and the company of lawyers who traveled with him were in town, there was a sense of excitement among the people. Whitney remembered that “the local belles came in to see and be seen” and that the tavern in the center of the town was “replete with bustle, business, energy, hilarity, novelty, irony, sarcasm, excitement and eloquence.”32 Because newspapers were scarce in country villages, the courthouse doubled as a kind of news center, where eyewitness reports of interesting events were exchanged, gossip circulated, and funny stories were told and retold. Lincoln was a gifted storyteller, with a seemingly endless supply of amusing yarns that people loved to hear. He told some of his stories in court—where even the judge enjoyed his efforts to enliven otherwise desultory proceedings—but most in the tavern, where the lawyers gathered after the court’s business for the day was concluded.
The lawyers who traveled the Eighth Judicial Circuit commonly slept two in a bed, and there were as many as three or four beds in each room. At mealtime, “the Judge, lawyers, suitors, jurors, witnesses, court officers, and prisoners out on bail, all ate together and carried on a running conversation all along the line of a long dining-room.” When one court session was through, the judge and all the lawyers “would tumble into a farmer’s wagon, or a carryall, or a succession of buggies, and trundle off across the prairie, to another court; stopping by the way at a farm-house for a chance dinner.”33
Before the late 1850s, when railroad travel became possible through much of Illinois, the lawyers made their way from town to town in buggies or stagecoaches, or on horseback. The roads were hot and dusty in the summer and muddy when it rained. Lincoln traveled the Eighth Judicial Circuit twice a year, first in the spring and then in the fall. The distance was considerable: more than four hundred miles before 1853 and more than two hundred thereafter.34 Many lawyers covered only part of the circuit, preferring to stay close to home and declining to follow the judge when his duties carried him farther away. Lincoln, Swett, and Judge Davis were resolute in traveling the entire circuit. If they were within reasonable traveling distance of their homes, the judge and the other attorneys would typically go home to visit their wives and families on Sundays. Lincoln usually spent his Sundays at the country tavern and only went home at the end of the circuit or term of the court.35
Lincoln derived many benefits from his circuit court work. It brought him into contact with scores of lawyers who shared his interest in the cause of justice, in the effective presentation of arguments, and in the great political causes then stirring in Illinois and the nation. In county after county, he formed personal and legal friendships that endured over the years and, in time, matured into political alliances. He honed his debating skills in the county courts, trying hundreds of cases of varying types and seriousness, both civil and criminal. He learned how to communicate effectively with juries, to speak to them in words that would convince them that he was on the side of truth and justice and that his clients should prevail because justice should prevail.36
Many of the cases that Lincoln tried on the Eighth Judicial Circuit were modest disputes between people of modest means—what one commentator has dismissed as “grubby” cases.37 As Whitney remembered, they often centered on “who was the owner of a litter of pigs, or which party was to blame for the loss of a flock of sheep, by foot rot; or whether some irascible spirit was justified in avowing that his enemy had committed perjury.” Yet Lincoln “gave as earnest attention to such matters, as later, he gave to affairs of state.”38 The ownership of pigs, and liability for the loss of a flock of sheep, were legal questions and, for Lincoln, matters of substance. They were as important in the lives of ordinary people as clear title to landed estates, or incomes from bonds and debentures, in the lives of the rich and privileged.
As Lincoln’s reputation grew, he began to get opportunities to leave the Eighth Circuit and go elsewhere to practice his profession—to places where more money could be made and, if possible, more fame and recognition could be won. Lincoln once received an invitation from a prominent Chicago attorney named Grant Goodrich to join his law practice in the northern city. He declined, explaining that “he would rather go around the Circuit . . . than to sit down & die in Chicago.”39 He would have made a lot of money in Chicago, but his goal was never to make a lot of money. He did well enough in the country courts of central Illinois, doing his bit to see to it that rights were respected and wrongs remedied, and he enjoyed the work there.
Years later, it would become evident that Lincoln applied many of the rules that governed his legal practice to his political life. During the Civil War, he told Schuyler Colfax (then Speaker of the House of Representatives and later vice president of the United States) 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 the adversary’s case—often finding it much weaker than he had feared.”40
In his political life, Lincoln was often referred to as “Honest Abe.” It was a good nickname for a politician who sought the confidence of voters and ultimately was rewarded with the highest office in their power to confer. In fact, however, the nickname was earned in Lincoln’s early business life—his neighbors called him that when he was keeping store in New Salem—and it was burnished during his years as a lawyer.41 Mrs. Lincoln once said that her husband was “almost a monomaniac on the subject of honesty,”42 and those who knew how he practiced law testified to his devotion to factual truthfulness and integrity. Judge Thomas Drummond, who presided over the U.S. District Court in Illinois, said that Lincoln always tried his cases “fairly and honestly. He never intentionally misrepresented the evidence of a witness or the argument of an opponent. He met both squarely, and if he could not explain the one or answer the other, substantially admitted it. He never misstated the law, according to his own intelligent view of it.”43 And when Lincoln didn’t know the answer to a particular legal question, he was willing to admit it.44 Henry Clay Whitney recalled once asking him if, in an attachment suit, the service of the writ of attachment on the defendant had the force of a summons. “He cast his eyes up to the ceiling for nearly a minute,” Whitney said, and then roguishly said: ‘Damfino.’”45
Perhaps because of his honesty, evaluations of Lincoln’s legal ability varied over the years, depending on the men who were judging him and their personal knowledge of his practice. Judge Drummond admitted that Lincoln’s speaking voice was “by no means pleasant, and, indeed, when excited, in its shrill tones, sometimes almost disagreeable.” He thought that Lincoln lacked the “personal graces of the orator” and did not outwardly seem to have “superiority of intellect” or “quickness of perception.” But Drummond believed that Lincoln’s “mind was so vigorous, his comprehension so exact and clear, and his judgment so sure, that he easily mastered the intricacies of his profession.”46 Isaac N. Arnold, a prominent Chicago lawyer who tried some cases (and argued some appeals) with Lincoln, thought that Lincoln “was, upon the whole, the strongest jury lawyer in the state. He had the ab
ility to perceive with almost intuitive quickness the decisive point in the case. In the examination and cross-examination of a witness he had no equal. He could compel a witness to tell the truth when he meant to lie, and if a witness lied he rarely escaped exposure under Lincoln’s cross-examination.”47
David Davis, who presided over more of Lincoln’s trials than any other judge, left conflicting assessments of Lincoln’s legal ability. In a eulogy he delivered to a bar association in Indianapolis after Lincoln’s assassination, Davis described Lincoln’s mind as “logical and direct.” “In all the elements that constituted a lawyer,” Davis said then, “he had few equals.”48 In an interview with Billy Herndon two years later, however, Davis was more critical. He affirmed then that Lincoln was “eminently just,” that he “felt for the poor,” and that he was “conscientious.”49 But he thought that Lincoln had “no managing faculty nor organizing power” and that “a child could conform to the simple and technical rules, the means and the modes of getting at justice, better than he.”50
Herndon also left conflicting opinions of his partner. He thought that Lincoln “knew nothing of the rules of evidence, of pleading, or practice, as laid down in the text-books, and seemed to care nothing about them.” But “he had a keen sense of justice, and struggled for it, throwing aside forms, methods, and rules, until it appeared pure as a ray of light flashing through a fog-bank.”51 Interestingly, Herndon said that Lincoln “was greatest in my opinion as a lawyer in the Supreme Court of Illinois.” Appellate arguments are generally considered more demanding than jury trials; they demand a more confident command of legal authorities and a stronger application of logic. When a case is on appeal, it has already been lost in the trial court, and the attorneys advancing the appeal are arguing that the trial judge made some legal error in the proceedings. Herndon, however, believed that Lincoln was effective in the Illinois Supreme Court because he had the time to carefully prepare his cases and present his arguments to the justices.52
In 1859, a juror in a case that Lincoln lost at the trial level (the case was ultimately reversed on appeal) put his impressions of Lincoln in print. “Lincoln tries a suit well,” the juror said. “By his genial spirit he keeps the Court, the jury and the opposite counsel in good humor, and sometimes by a comical remark, or a clever joke, upsets the dignity of the Court. He never makes a big fight over a small or immaterial point, but frankly admits much, though never enough to damage his case. In this, he differs much from little lawyers, who adhere with unyielding pertinacity to trifles, and make their greatest efforts at nothing.”53 “Lincoln is not a great lawyer,” the juror continued, “though he is a good one.”54
Lincoln’s own assessment of his legal abilities was characteristically modest. In his notes for a law lecture he said: “I am not an accomplished lawyer. I find quite as much material for a lecture in those points wherein I have failed, as in those wherein I have been moderately successful.”55 But Lincoln’s modesty in speaking of his legal abilities, as in so much of the rest of his life, concealed a vast reservoir of confidence. He did believe in his ability to try cases as well, perhaps, as any other attorney in central Illinois—his success with juries attested to that. He did believe in his ability to argue cases in the Supreme Court of Illinois—the number of Supreme Court cases other attorneys referred to him attested to that. And he did believe in his ability to present effective arguments in the court of public opinion, in his home state and ultimately in the United States. His election to the presidency in 1861 attested to that.
At the end of 1860 and in the early days of 1861, Lincoln, his wife, and their children made preparations to move to Washington, D.C., where he was to enter on his new duties as president. He rented out his family house, gathered his personal possessions together (they were never very extensive), and made a last visit to the plain upstairs office he and Herndon shared in Springfield. After going over the office books and giving Herndon some instructions about cases they had that were still pending, he stretched himself out on the old sofa that occupied one wall of the room. He lay for some moments, looking at the ceiling, then spoke. “Billy, how long have we been together?”
“Over sixteen years,” Herndon answered.
“We’ve never had a cross word during all that time, have we?”
“No,” Herndon answered, “we have not.”
Lincoln then mused about the early years of their partnership. He told Herndon about some of the lawyers who had sought to gain entrance into Lincoln’s law practice, edging out Herndon, but he had resisted all of them. “I never saw him in a more cheerful mood,” Herndon remembered years later.
Then Lincoln made what Herndon called a “strange request.” He asked that the signboard that hung on rusty hinges at the base of the stairs leading up to their office remain in place after he was gone. “Let it hang there undisturbed,” he said. “Give our clients to understand that the election of a President makes no change in the firm of Lincoln and Herndon. If I live I’m coming back some time, and then we’ll go right on practicing law as if nothing had ever happened.”56
Soon after, Lincoln left for Washington, while Herndon remained in Springfield. In the White House, Lincoln grew from a politician into a statesman. He became the commander in chief of the military forces of the nation during the most terrible war known in its history. He became the “great emancipator” of the slaves. He delivered speeches that are still considered the greatest public utterances ever made in American history. Ultimately, when an assassin’s bullet entered his brain, he became a martyr. He returned to Illinois in a coffin, but his friends and colleagues in Springfield remembered what he had been before he left: a lawyer who wanted to return to practice law in the firm of Lincoln and Herndon.
FOUR
The First Bridge over the First River
It is hard to imagine a time when there were no bridges over the Mississippi River. Great steel and stone and concrete structures now span the waterway from north to south, providing smooth and easy passage for pedestrians, bicyclists, automobiles, trucks, railroads, aqueducts, pipelines, electric cables, and virtually anything else that human beings in the modern age need to move from one place to another. Bridges are an essential feature of life in a civilized society, but they are hardly new, or unique to civilization. If they were not made by nature itself—a broken tree limb fallen across a stream or stones scattered in a river—they were fashioned by early man out of tree trunks or planks, dragged to the nearest bank of a stream that had to be crossed and thrown across the water to the other side. The greatest bridge builders of early times, the Romans, built their spans of arched stone according to designs that would endure for centuries, even millennia. Other bridges were made out of combinations of masonry and wood that lasted until they had to be replaced with more durable materials. Bridges were built by the Native Americans according to their own time-honored designs. When the first Europeans came to America, they constructed bridges that resembled Old World models but were adapted to New World conditions. They were structures capable of standing up to wet climates, severe winters, and searing summers, but also resistant to the ever-present danger of fires.
One of the first bridges in colonial America was built across the Neponset River in Massachusetts in 1634 by a man named Israel Stoughton.1 Another bridge followed in 1654, built by Richard Thurley over the Newbury River between the towns of Rowley and Newbury. Having constructed the bridge with his own resources, Thurley was authorized by the General Court of Massachusetts to collect tolls from all who passed over the span.2
Other bridges soon followed along the Atlantic seaboard from New England south through New York and Pennsylvania, across streams that emptied into Chesapeake Bay, across rivers that flowed down from the Appalachians to the ocean. It would, however, be a long while before any attempts were made to build bridges across rivers west of those mountains.
Bridge technology had made great strides by the time the Railroad Bridge Company began work on the Rock
Island Bridge in 1853. Still, the challenges the company faced were not altogether different from those of earlier builders—with one notable exception. There were natural obstacles, of course: the river itself, the banks on either side, the often treacherous flow of the water between them, the thick ice that clogged the northern rivers in the coldest months of the year, the low water levels that in dry seasons made the rivers virtually impassable, and the dangerous rocks and sandbars that lurked here and there beneath the waters. There were legal obstacles, too: authorizations that had to be obtained from legislative bodies at the state and national levels, property that had to be acquired, lawsuits that had to be anticipated and defended against. A third obstacle was of a different kind, for there was a powerful public official in Washington who did not want the bridge across the Mississippi to be built, or if it had to be built, did not want it to be built at Rock Island. He was the strong-willed U.S. secretary of war, Jefferson Davis, who claimed authority over Rock Island and was determined to exercise it.
Rock Island is situated in the Upper Mississippi at a place where the river suspends its north-south course and follows a generally east-to-west course for a distance of about forty miles.3 It lies a short distance above the mouth of the Rock River, a substantial stream that rises in southeast Wisconsin and flows for about three hundred miles through Wisconsin and northern Illinois before joining the Mississippi. The island measures about two and a half miles from east to west and three-quarters of a mile from north to south. Its land area of a thousand acres is underlain with limestone and in historic times was heavily wooded. As the crow flies, the island is not quite 200 miles west of Chicago and 286 miles northeast of St. Louis. When steamboats still plied the river, the distance from St. Louis was measured in “river miles” at exactly 347.4
Lincoln's Greatest Case: The River, the Bridge, and the Making of America Page 6